Volume 34 Number 2 -- January 2001

TABLE OF CONTENTS

ARTICLES

RACIAL RELEASES, INVOLUNTARY SEPARATIONS, AND EMPLOYMENT AT-WILL

by Donna E. Young

Professor Donna E. Young contributes to a lively and increasingly heated debate about the appropriate role of law in regulating the workplace. Since the end of the nineteenth century, the employment at-will doctrine has been the foundation for legal regulation of the employment relationship. According to the doctrine, so long as employer and employee have entered into an employment relationship and no time period has been specified for that relationship, then each party is entitled to terminate the relationship at any time, for any reason, without notice. The rule thus presumes an equality of bargaining strength between employer and employee. The doctrine’s simplicity obscures its most troubling feature -- its contribution to a system of employment regulation that perpetuates societal inequalities between the races, sexes, and classes.
 

In recent years, the at-will doctrine has been criticized for adopting the erroneous assumption that those with the power to quit enjoy the same advantage in the employment relationship as those with the power to fire. Against increasing hostility to the rule, however, there has emerged a spirited defense in the law and economics literature. The author is firmly on the side of the critics. However, she differs from her fellow critics in several fundamental respects. First, Professor Young has chosen to place people of color at the center of her analysis; up to now they have been relegated to the margins of the academic dialogue on employment at-will. This is perplexing since intuition suggests and recent studies confirm that people of color are much more likely to be discharged from employment than Whites. She argues that the employment at-will doctrine works in tandem with ineffectual antidiscrimination laws to facilitate these dismissals by shielding employers from having to justifying terminations. Second, Professor Young contends that placing people of color at the center of the analysis makes apparent the shortcomings of a “just cause” scheme that employment atwill critics have presented as an alternative to the at-will presumption; studies have found that in the federal employment sector in which just cause requirements are the norm, people of color are still more likely than Whites to be involuntarily dismissed. Third, she argues that the United States stands virtually alone among Western industrialized nations in its failure to furnish its workers adequate job security; she argues that American lawmakers should emulate Canada’s employment regulation as a model for law reform. Fourth, Professor Young offers her solution, which is that the law ought to require mandatory notice or pay in lieu of notice; she argues that a minimum notice requirement would have the effect of compensating those victims of discriminatory discharge who cannot rely on current antidiscrimination laws to protect them.  
 

Professor Young intends Racial Releases to challenge commonly held notions about the appropriate legal regulation of the employment relationship in the context of the social and economic inequality which currently permeates the American workplace.

CHARACTER AND MOTIVE IN EVIDENCE LAW

by David P. Leonard

When motive is relevant, evidence tending to show its existence is usually admissible but subject to exclusion if the risk of unfair prejudice is too great. In this Article, Professor David P. Leonard examines the use of uncharged misconduct evidence to prove motive. The author describes the meaning and uses of motive in evidence law with a view to understanding the difference between “motive” and “character.” In addition, Professor Leonard reviews the recent case of United States v. Cunningham, in which drug addiction was seen as motive rather than character, and discusses whether the court construed the limits of the motive theory. He concludes that this area is in need of reform.

SYMPOSIUM

THE RAMPART SCANDAL: POLICING THE CRIMINAL JUSTICE SYSTEM

INTRODUCTION

by David W. Burcham and Catherine L. Fisk

AN INDEPENDENT ANALYSIS OF THE LOS ANGELES POLICE DEPARTMENT’S BOARD OF INQUIRY REPORT ON THE RAMPART SCANDAL

by Erwin Chemerinsky

Professor Erwin Chemerinsky presents a detailed analysis of the Los Angeles Police Department’s Board of Inquiry Report on the Rampart scandal and provides detailed recommendations for reforming the criminal justice system in Los Angeles to prevent future scandals. Chemerinsky’s report, which was prepared at the request of the Los Angeles Police Protective League, discusses the need for major reforms in the culture of the LAPD, in its command and oversight structure, in its disciplinary system, and in its handling of excessive force and officerinvolved shooting cases. Additionally, the report argues that the entire criminal justice system in Los Angeles, including the judges, the District Attorney’s Office, the City Attorney’s Office, and the Public Defender’s Office, need to be reformed.

ON CORRUPTION AND POSSIBILITY IN L.A.

by Samuel H. Pillsbury

The following is an address given by Professor Samuel H. Pillsbury at Loyola’s Rampart Symposium. Professor Pillsbury addresses the systematic problems with the American criminal justice system that ultimately lead to the Los Angeles Police Department’s Rampart scandal. It is the breakdown of the system as a whole -- not just a few corrupt police officers -- that lead to the scandal. Professor Pillsbury also provides a local perspective into what Los Angeles can learn from the Rampart scandal. The scandal signals the city’s failure to meet the challenges of diversity, community, security, and justice that every city and nation face. However, Professor Pillsbury concludes, if the Rampart scandal produces a long-term systematic change in the criminal justice system and forces Americans and Angelinos to communicate and cooperate, not only will America be a better place to live, but Los Angeles could become a great city as well.

TRACING THE PATTERN OF NO PATTERN: STORIES OF POLICE BRUTALITY

by Susan Bandes

In her comments presented at Loyola’s Symposium on the LAPD Rampart scandal, Professor Susan Bandes examines the means by which systemic police brutality and corruption in the LAPD have been anecdotalized and portrayed as a problem of a handful of rogue officers. She argues that it is crucial to recognize the seriousness of criminal conduct like that engaged in by police officers at the Rampart Division’s elite CRASH tactical unit, and to bring criminal charges where appropriate -- a response which all too rarely occurs. However, police corruption and brutality ought not to be viewed as isolated from other, more widespread and familiar types of police wrongdoing. Corruption and other types of police wrongdoing share many of the same root causes. Moreover, corruption leads to brutality, and to the failures of accountability that allow corruption and other police criminality to thrive. Professor Bandes concludes that until society addresses the ways in which patterns of police brutality are systematically masked, we will face daunting barriers to effective reform.

CHANGING POLICE CULTURE: THE SINE QUA NON OF REFORM

by Robert W. Benson

In his comments presented at Loyola’s Symposium on the LAPD Rampart scandal, Professor Robert W. Benson addresses the effect of machismo and militarism on the culture of the Los Angeles Police Department. He argues that prevalent attitudes of machismo and militarism allow, and in fact foster, corruption and brutality in the Los Angeles Police Department. Further, without addressing these issues in a systematic manner, the attitudes will persist. Professor Benson offers that continued pressure from citizens’ groups and organizations are the best manner to force the LAPD to adopt policies that address the attitudes of militarism and machismo.

CALLING IN THE GIRL SCOUTS: FEMINIST LEGAL THEORY AND POLICE MISCONDUCT

by Mary Ellen Gale

The Rampart scandal is just the latest episode in a long history of abuse and corruption within the Los Angeles Police Department. In this Article, Professor Mary Ellen Gale uses feminist legal theory to explain both the causal factors behind the LAPD’s misconduct, and to guide solutions for reducing such behavior. Specifically, she argues that police abuse is spawned by stereotypic, aggressive, rampant masculinity, and that the best way to counteract the effects of this ethos is to hire more women to serve as police officers. Professor Gale concludes that active feminist law enforcement would not only discourage violence, abuse, and corruption, but also make communities safer, more equal, and more free.

DEMONIZING YOUTH

by Linda S. Beres and Thomas D. Griffith

Professors Linda S. Beres and Thomas D. Griffith examine the “demonization” of young, minority males by the legislature, media, scholars, and the public in general. The attitude that minority youth are the “enemy” has fostered legislation, such as Proposition 21, and inappropriate police conduct, such as the activities surrounding the LAPD Rampart Division scandal. The authors examine the state crime statistics detailing homicides and other violent crimes, finding that while public perception has violent crime for youth on the rise, it in fact is declining. The authors then examine the misuse of gang databases.  
 

Professors Beres and Griffith conclude that the demonization of youth reinforces racial stereotypes and prevents the adoption of cost-effective, nonpunitive methods of crime reduction.

RAMPART: A CRYING NEED TO RESTORE POLICE ACCOUNTABILITY

by Carol A. Chase

The following is an Article submitted by Professor Carol A. Chase as part of Loyola’s Rampart Symposium. In the Article, Professor Chase criticizes the current state of the criminal justice system because of the lack of direct repercussions to officers who violate the law during a criminal investigation. The failure to hold police officers accountable for their violations is compounded by the system’s acceptance of police officer perjury. Judges, fueled by public pressure, feel compelled to accept police testimony in criminal prosecutions, especially where the defendant is obviously guilty, even if they believe the testimony is not truthful. It is these transgressions in the criminal justice system that fueled the Rampart scandal. Professor Chase concludes that the Rampart scandal has demonstrated the need to hold police officers accountable for violating the law in criminal investigations and for courts to follow the law by refusing to accept the perjured testimony of police officers.

RUNNING FROM RAMPART

by Stanley A. Goldman

In this Article, Professor Stanley A. Goldman discusses the recent Supreme Court decision in Illinois v. Wardlow. Professor Goldman declares that under Wardlow, flight upon seeing the police in an area known for high drug trafficking gives the police sufficiently reasonable suspicion to stop and frisk an individual. The author further discusses how the labeling of an area as “high crime” may serve as a proxy for race or ethnicity, or that even innocent people may flee from the police in such areas. The author then places the Wardlow case in the context of the LAPD Rampart scandal. The author concludes that Wardlow appears to offer less constitutional protection to the inhabitants of high crime neighborhoods such as Rampart.

UNNERVING THE JUDGES: JUDICIAL RESPONSIBILITY FOR THE RAMPART SCANDAL

by Laurie L. Levenson

Many in the legal profession, including those participating in the Loyola Law School Symposium on the Rampart scandal, focused on the role of prosecutors, defense lawyers, police, and the legislature in apportioning responsibility for Rampart. Professor Laurie L. Levenson discusses judicial responsibility for the injustices resulting from the Rampart scandal. She explains judicial practices and procedures which contributed, in part, to the Rampart problems. She argues that judges must openly accept some of the responsibility for Rampart for any meaningful reform to occur, and to prevent similar abuses in the justice system from recurring. Professor Levenson concludes with recommendations to judges as to how they can help prevent future police abuses.

INCUBATING MONSTERS?: PROSECUTORIAL RESPONSIBILITY FOR THE RAMPART SCANDAL

by Gary C. Williams

Professor Gary C. Williams discusses the ethical obligations imposed on prosecutors when utilizing police officer testimony at trial, an issue highlighted by the current Rampart scandal. Both the California Rules of Professional Conduct and the American Bar Association Model Rules of Professional Conduct require prosecutors to proceed in a criminal case only if they have probable cause. Professor Williams argues that the ethical obligation imposed on prosecutors to act as “ministers of justice” requires them to investigate the reputation of the officer, and the history of his/her prior testimony at trial, to determine the officer’s credibility and propensity to commit perjury to secure a conviction. Should a prosecutor determine that an officer has been less than truthful or has acted unethically, the prosecutor has a duty to dismiss the prosecution and to report the officer to the officer’s superiors, to the prosecutor’s superiors, and to any sister prosecutorial agency. If prosecutors tolerate untruthful officer testimony, a defendant may be unfairly placed in a compromising position. Many defendants charged based on perjured police testimony face a “West” dilemma. They must choose to plead guilty to a crime they did not commit to get a lighter sentence, or plead innocent and face the probability, if convicted, the judge will impose the maximum penalty. Professor Williams concludes, given the ethical obligations imposed on the prosecutor and the possible dilemma faced by the defendant, the prosecutor must vigorously act as a minister of justice and dismiss any charges when there is serious doubt or lack of probable cause.

LOS ANGELES AS A SINGLE-CELLED ORGANISM

by Robert S. Chang

In this Article, Professor Robert S. Chang discusses the Los Angeles Police Department’s Rampart scandal. Professor Chang compares Los Angeles to a single-celled organism that lives according to three basic survival rules. These three rules are: 1) keep out that which is undesirable, 2) isolate and control that which cannot be kept out, and 3) expel, whenever possible, undesirable elements. The author first discusses some of the historical antecedents to the Rampart scandal in Los Angeles. The author then discusses how the United States as a whole has historically acted according to the three basic survival rules exhibited by a single-celled organism. Finally, the author addresses how these historical events in the United States and in Los Angeles set the stage for the Los Angeles Police Department Rampart scandal.

DIFFERENT WORLDS, DIFFERENT REALITIES

by David P. Leonard

In his comments prepared for Loyola’s Symposium on the LAPD Rampart Scandal, Professor David P. Leonard analyzes the impact of different perspectives of reality on the criminal justice system and our communities. On his way to providing possible explanations for the jury verdicts in the Rodney King and O.J. Simpson trials, and for community reaction toward the Rampart scandal, Professor Leonard takes into account the demographics of the United States, Los Angeles, and the Rampart district.

NOTES

ADMINISTRATIVE DENATURALIZATION: IS THERE “NOTHING YOU CAN DO THAT CAN’T BE [UN]DONE”?

by Jon B. Hultman

In 1996, the Immigration and Naturalization Service instituted administrative denaturalization proceedings against new citizens who were alleged to have fraudulently procured their naturalization. The Ninth Circuit Court of Appeals, in Gorbach v. Reno, ruled that the agency does not have the power to denaturalize U.S. citizens. This Note explains why the court reached the right result, in spite of the deference that is normally due to agency interpretations of laws that they are charged with administering. The author also argues that the Supreme Court and Congress should not disturb this result, because the current system -- which vests the naturalization power in the INS and the denaturalization power in the federal courts -- furthers the constitutional goals of separation of powers, procedural due process, and equal protection.

A PACK OF WILD DOGS? CHEW V. GATES AND POLICE CANINE EXCESSIVE FORCE

by Mark Weintraub

Police departments use of canines to find and seize cloaked suspects has come under recent scrutiny because of a flurry of excessive force claims. Unfortunately, the judiciary has wrongly curtailed the potential liability of police canines. This Note examines Chew v. Gates and the procedural barriers and poor policy justifications used to limit police canine liability. The author suggests a more equitable way to analyze these claims and recommends methods to reduce excessive force claims while retaining the utility of police canines.