Ad-Hoc Work Group Minnesota

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Ad-Hoc Work Group Minnesota

Shadow Report submitted by the Ad-Hoc Work Group Minnesota Re: US Compliance With Human Rights Treaties (November 20, 2015) Responding to a Follow-Up Report that the United States of America filed September 22, 2015 with the United Nations Committee for the Elimination of All Forms of Racial Discrimination (CERD)

Endorsing Organizations: * Asian Media Access * Black People Against Police Torture * Blocks Together * Chicago Independent Human Rights Council (CIHRC) * Chicago Anti Eviction Campaign * Communities United Against Police Brutality (CUAPB) * Cultural and Ethnic Communities Leadership Council (CECLC) * Growth and Justice * Isuroon (Seeking Health and Empowerment for Somali Women) * Minnesota Black Nurses Association (MNNBA) * Minnesota Tenants Union * NAACP – St. Paul Branch * NAACP- Minnesota/Dakotas State Conference * SouthSiders Together Organizing for Power (STOP) * Southside Pride * Students Uniting Nations for Human Rights * Voice of East African Women, Inc. * Endorsing Individuals (organization information provided with individuals is for identification purposes only): * Rose Brewer, Ph.D., Afro-American & African Studies Department, University of Minnesota * Peter W. Brown, Attorney, Minnesota Tenants Union and member of the USHRN Task Force on the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD) * Susana De Leon, DeLeon and Nestor, P.A. * Ed Felien, Editor, Southside Pride * Susan R. Gzesh, Senior Lecturer & Executive Director, Pozen Family Center for Human Rights, University of Chicago * Ange Hwang, Executive Director, Asian Media Access * Farhio Khalif, Executive Director, Voice of East African Women, Inc. * Shirlynn LaChapelle, R.N., S.N.P, President, Minnesota Black Nurses Association (MNNBA) * Bruce D. Nestor, Past President, National Lawyers Guild (2000-2003) * Yolanda C. Rondon, Esq., American-Arab Anti-Discrimination Committee (ADC) Staff Attorney * Sunnetta "Sunny" Slaughter, Strategic Policy/Advocacy Consultant, CEO/Principal, Sunny Slaughter Consulting, LLC * Dane Smith, President, Growth & Justice * Fartun Weli, MPH, MAPP, Executive Director, Isuroon * V. Casanova Willis, National Conference of Black Lawyers - Chicago

Page 1 SUMMARY 1. The US Follow-Up Report to the CERD on police issues provides no evidence that its governing bodies at any level of government followed-up on (i.e., took any action to ensure compliance with) the CERD’s Concluding Observations regarding excessive force by law enforcement officials: CO 17(a) and 17(b).

2. Indeed, it appears to be the strategy of the United States to simply presume that there is no ICERD obligation that current US policies and practices do not already meet and to avoid addressing implementation or non-implementation of the Concluding Observations (COs), instead listing a few generically pro-human rights laws and actions that appear potentially, but are not actually, relevant to the COs, implementation of which the US has been specifically directed to report. In an address to the 2015 annual meeting of the nation’s State Attorneys General, the U.S. Department of State’s Acting Legal Advisor described the real agenda of the US delegation during the treaty monitoring body reviews as follows:

No matter what, our delegations are always prepared to tell the world about the myriad ways in which our nation’s commitment to human rights is manifested in our policies and practices. Endnote 1 See Endnotes below on page 6 or online at http://www.cuapb.org/wp- content/uploads/2015/11/ENDNOTES-for-Shadow-Report.docx.

3. Following this agenda closely, the US Follow-Up Report does not acknowledge the US government’s obligation to implement the ICERD obligations in conjunction with the guidance provided by the CERD’s COs. The report does not document any steps taken at the federal, state, and local to specifically implement the CERD’s important and specific recommendations on police issues; does not assess the level of its achievement in implementing the CERD’s recommendations; does not identify obstacles encountered in carrying out the CERD’s recommendations; does not acknowledge any shortcomings meeting the treaty obligations referred to by the CERD; and does not commit to a specific plan for correcting those shortcomings. Instead, the US assumes without proving it that its accountability policies and personnel need no improvement in the areas addressed in CO 17(a) and (b).

4. In short, the US Follow-Up Report is thoroughly non-responsive to the CERD’s Concluding Observations. This non-responsiveness indicates disregard for those observations and an unwillingness to take its obligations under the ICERD seriously. We urge the CERD to address this demonstrated posture of the US clearly and directly when it meets to review the US Follow-Up Report. ISSUES OF APPROPRIATE SUPPORT 5. Responsibility of State Parties to Support With Sound Documentation Assertions Made in Follow-Up Reports: It seems that the US government feels that its unsupported assertions warrant acceptance and should be assumed correct unless civil society can prove otherwise. However, as between the United States Government and civil society, it is the United States Government that has the obligation to report fully and persuasively to the CERD in its Follow Up-Report, to demonstrate (not simply assert) what it has done to comply with the

Page 2 CERD’s recommendation, and to demonstrate/document (not simply assert) the level of implementation of the treaty obligations under focus that it has achieved (“ensured”).

6. Use of “Exemplary” Measures or Cases: In its most recent Periodic Report to the CERD and again here in its Follow-Up Report, the US Government lists a handful of programs, bills, or cases that it asserts or suggests by innuendo suffice to demonstrate adequate compliance with some treaty provision or CO. The US Government, however, never makes a showing that the cited examples do in fact achieve or move substantially towards treaty or CO compliance. Argument by anecdote and hasty generalization are well-known logical fallacies that the US Government should not be allowed to indulge.

7. In its Follow-Up Report, for example, the US cites a few cases where police officers have been successfully sued or disciplined. The US cites these cases apparently to suggest that incidents of police misconduct are “promptly and effectively” investigated and prosecuted throughout the US and that residents of the US have adequate safeguards, remedies and legal access for police misconduct.

8. However, the cases cited by the US are so few and random when compared to the 18,000 law enforcement agencies nationwide and un-redressed brutality incidents that the Report’s citing of a handful of responses is not a valid way to demonstrate anything of substance. To put the Report’s handful of cases in some perspective, the website “Mapping Police Violence” reports as of the filing of this Shadow Report that “At least 292 black people have been killed by the police in the U.S. in 2015.” Endnote 2 See Endnotes below on page 6 or online at http://www.cuapb.org/wp-content/uploads/2015/11/ENDNOTES-for-Shadow-Report.docx.

REVIEW OF THE US FOLLOW-UP REPORT RE: CO 17(a) and (b)

9. This Shadow Report analyzes the US Follow-Up Report regarding CERD COs 17(a) and 17(b) and finds the US Report totally non-responsive to the CERD’s request for follow-up on these important police issues.

10. Regarding CO 17(a): In its Follow-Up Report regarding CO 17(a), the US did not report one step taken during the year to improve operations to ensure that its governmental units, for example, see to it that each allegation of excessive use of force by law enforcement officials is promptly and effectively investigated, that the alleged perpetrators are prosecuted, and that, if convicted, are punished with appropriate sanctions. According to the US, it appears, no improvements in its policies and practices on these subjects are needed at any governmental level because, it apparently believes and would have us believe also, the US already has in place appropriate accountability mechanisms and, the its federal, state, and local authorities “take vigilant action to prevent use of excessive force by law enforcement officials and to hold accountable persons responsible for such use of force.”

11. The information provided in the US Report, however, do not substantiate such rosy assertions. The US provides no comprehensive study or report to substantiate its position but Page 3 instead cites a handful of instances of human rights-related prosecutions, city-specific investigations, and activities.

 In support of its implied assertion that the US Department of Justice’s jurisdiction and use of that jurisdiction to prosecute excessive force by federal, state, and local officials is adequate to ensure that “alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions”, the Report cites “as examples” two DOJ prosecutions in 2015. The Report appears to assume the reader will fill in the blanks, concluding that there probably were just too many prosecutions and convictions to report but that wherever federal prosecution was warranted federal prosecution occurred. No such assumptions are warranted. Endnote 3 See Endnotes below on page 6 or online at http://www.cuapb.org/wp- content/uploads/2015/11/ENDNOTES-for-Shadow-Report.docx.

 In support of its assertion that no changes need be made regarding state and local prosecutions involving the alleged use of excessive force by police against members of racial or ethnic minorities to ensure that “alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions”, the Report cites three state or local prosecutions in 2015. As it does with respect to the DOJ prosecutions, the Report appears to assume the reader will accept the three cited cases as a proper stand-in for an entire list of such cases and, further, that they constitute adequate proof that effective prosecution by state and local authorities occurs throughout the US wherever use of excessive force by police against members of racial or ethnic minorities warrants it. No such assumptions are warranted. Endnote 4 See Endnotes below on page 6 or online at http://www.cuapb.org/wp-content/uploads/2015/11/ENDNOTES-for-Shadow- Report.docx.

 The Report mentions the DOJ Civil Rights Division’s jurisdiction and activity instituting civil suits for equitable and declaratory relief pursuant to the pattern or practice of police misconduct provision of 42 U.S.C. § 14141. The Report appears to imply that the DOJ’s “pattern and practice” authority and use of that authority substantially ensures “effective remedies” and other items addressed by the CERD in its CO 17(a). However, the Report does not give substantiating details (by link or otherwise) regarding the DOJ’s “more than 20 investigations of discriminatory policing and/or excessive force in the last six years and . . . 19 agreements with state or local law enforcement agencies, working toward long-term solutions in those jurisdictions.” The Report provides no information demonstrating that those investigations and agreements furthered compliance with the standards and practices identified in CO 17(a) and 17(b).

 The US Follow-Up Report mentions three investigations of police departments by the DOJ using its pattern and practice authority: Ferguson, Baltimore, and Cleveland. The

Page 4 Report does not state nor does it show that these investigations have promoted or are designed to promote awareness of and compliance with the on-going treaty obligations (standards and practices) identified in the CERD’s CO 17(a) and 17(b). In fact, the DOJ’s pattern and practice activity does not promote compliance with these human rights obligations and may indeed undermine them. For an analysis of DOJ pattern and practice activity in these three cities see ANALYSIS OF DOJ PATTERN AND PRACTICE ACTIVITY online at http://www.cuapb.org/wp- content/uploads/2015/11/ANALYSIS-OF-DOJ-PATTERN-AND-PRACTICE-ACTIVITY- IN-THE-THREE-CITIES-CITED-IN-ITS-9.docx. 12. While the federal government has provided no study or survey supporting its assertion that the adequate mandatory police accountability mechanisms in place at the state and local level, a well-publicized study by Amnesty International found exactly the opposite with respect to lethal use-of-force. In June 2015, Amnesty International’s (AI’s) Report on Deadly Force Statutes evaluated all US state statutes on the use of lethal force. One of the AI Report’s key findings was this:  Zero states have a provision in the state law on police use of lethal force that establishes specific accountability mechanisms for the use of lethal force by officers, such as obligatory reporting that a firearm has been used or that there be a prompt, thorough, independent and impartial investigation with a view to prosecution. 13. See the Amnesty International (AI) news release at http://www.amnestyusa.org/news/press-releases/amnesty-international-report-finds-that-all-50- states-fail-to-meet-international-standards-on-the-us and the entire AI Report at http://www.amnestyusa.org/sites/default/files/aiusa_deadlyforcereportjune2015.pdf.

14. The US Follow-Up Report had adequate time to dispute Amnesty International’s well publicized findings but did not do so in its Follow-Up Report.

15. Regarding CO 17(b): This Shadow Report focuses on the CO’s recommendation that the US ensure that its law enforcement officials at all levels of government comply with the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principles). In its Follow-Up Report regarding CO 17(b), the US 1) provides blanket statements such as that “authorities at all levels have intensified their efforts”, but does not identify how many law enforcement agencies they are referring to (there are approximately 18,000 state and city law enforcement agencies), what action has been taken by whom, and how and whether the US has determined that the changes adopted comply with the Basic Principles. Similarly, the US states that “efforts being undertaken include a number of methods addressed in the [Basic Principles] but does not identify who is making what efforts, what the “methods” addressed in the Basic Principles and what is the results of the efforts allegedly being made. Failure to provide such basic information, the US has not provided a report that proves that it has complied with CO 17(b).

16. Accordingly, the US assertion that “U.S. government policies [presumably indicating all levels of US government: federal, state, and local] on use of force by law enforcement officials

Page 5 are fully consistent with the Basic Principles and with the UN Code of Conduct for Law Enforcement Officials” is wholly unsupported. The US cites no study or review as the basis for such a claim.

17. If civil society had the burden of proof to affirmatively show that the unsupported US assertion of nationwide compliance with the Basic Principles is false, there is in fact strong evidence that the US assertion is false. See EVIDENCE online at http://www.cuapb.org/wp- content/uploads/2015/11/EVIDENCE-THAT-THE-US-ASSERTION-OF-NATIONWIDE- COMPLIANCE-WITH-THE-USE-OF-FORCE-STANDARD-SET-IN-THE.docx.

On-Going Missed Opportunities

18. Throughout the follow-up year during which US was requested by the CERD to ensure implementation of the standards and practices for policing identified in Concluding Observations 17(a) and 17(b), the US routinely missed opportunities to do so. The missed opportunities are so pervasive as to constitute de-facto US policy not to fulfill these obligations. A review the government’s multiple missed multiple opportunities to comply with the CERD’s Concluding Observations on police use of force is provided: see MISSED OPPORTUNITIES online at http://www.cuapb.org/wp-content/uploads/2015/11/REVIEW-OF-MISSED-OPPORTUNITIES- in-2015-TO-PROMOTE-THE-STANDARDS-IDENTIFIED-IN-THE-CERD.docx.

RECOMMENDATIONS

19. The Follow-Up Reporting Process is an opportunity to promote and confirm concrete steps on issues that the CERD has identified for priority treatment due to their seriousness and the length of time they have gone uncorrected. The CERD’s evaluation and next steps regarding the US Follow-Up Report on police issues will inform the US and the world what the CERD believes is sufficient forward progress and adequate reporting on these important police accountability issues.

20. Based on the review we have provided and grading on the system used by the Human Rights Committee (HRC) in evaluating Follow-Up Reports submitted to it, we find that the US report merits a grade of E (cumulative action and inaction amounting to a policy of keeping the treaty standards unknown and unfulfilled), contrary to the COs) or, in the alternative, C1/C2 due to the irrelevance of the actions reported to actual implementation of CO 17(a) and 17(b).

21. But more importantly, in light of the US’ grossly deficient Follow-Up Report as amply noted in this Shadow Report, we urge the CERD to use its authority under ICERD Article 9, 1(b) and CERD’s Rule 65 to request the US to provide further information within six months, 1) documenting all steps it has taken to implement CO 17(a) and (b) since the COs were issued (August 29, 2014), 2) realistically reporting the current level of implementation of these obligations, 3) listing obstacles encountered, and 4) presenting plans to overcome those obstacles, thereby correcting the deficiencies our Shadow Report has identified.

Page 6 22. We also ask that the CERD ask the US to 1) affirm that it recognizes that ratified treaties such as the ICERD and the CAT are part of the “supreme law of the land” under the US Constitution (Article 6, Section 2), including the police conduct and accountability obligations emphasized n the CERD’s COs 17(a) and (17(b), and therefore 2) to commit henceforward to view implementation of the ICERD and CAT police conduct and accountability provisions to be part of the “constitutional policing” that it is committed to promote throughout the US.

ENDNOTES for Shadow Report Responding to US Follow-Up Report re: CERD’s COs 17(a) and (b)

Remarks of Mary McLeod, Acting Legal Adviser, US Department of State, to the National Association of Attorneys General National Conference, Washington, DC (February 25, 2015) entitled “The Role of State, Territorial, and Local Government in Promoting, Respecting, and Defending Human Rights” online at www.state.gov/s/l/releases/remarks/239960.htm.

2 See http://mappingpoliceviolence.org/. Additional sources documenting the avalanche of African-American deaths at the hands of law enforcement during 2015 alone, the year the US was supposed to be doing its best to implement these COs, include these: http://www.theguardian.com/us-news/2015/jun/01/black-americans-killed-by-police-analysis and http://www.nytimes.com/interactive/2015/07/30/us/police-videos-race.html. And according to a recently reported study, more than half of African-American millennials indicated they, or someone they knew, had been victimized by violence or harassment from law enforcement. See Chicago Tribune article at http://www.chicagotribune.com/news/nationworld/ct-black- millennials-police-force-20151104-story.html.

UPDATE 11/20/15: As we file this Shadow Report and demonstrating the pervasiveness and seriousness of this crisis nationwide, please note yet another shooting this week of an unarmed young African American man, Jamar Clark, in Minneapolis, Minnesota and the community response taking place there calling for systemic change. On the date this Shadow Report is being filed, a rally and march will be participated in by, among others, the President of the National NAACP, Cornell William Brooks. See mainstream media coverage, e.g. at http://www.startribune.com/naacp-to-speak-on-jamar-clark-s-death-after-night-of- clashes/351803771/ (includes videos).

3 The US government could certainly have obtained from its Department of Justice and presented a complete list of federal (and potentially, via its network of US Attorneys throughout the US, a list of state and local) prosecutions of these crimes. No reason exists why the Report could not at least link to a list of all federal prosecutions and provide on that link an analysis comparing that number to the number of complaints of police excessive force. This would help the CERD and other readers assess how regular and widespread are such prosecutions are and give some idea on how effective these prosecutions have been in rendering appropriate Page 7 accountability and stemming the incidence of police abuse of members of racial or ethnic minorities.

4 The CERD’s CO 17(b) directs the US to ensure compliance with the Basic Principles on the Use of Force and Firearms by Law Enforcement Official (Basic Principles). Article 22 of the Basic Principles details those reporting obligations. If these reporting obligations (which apply to the US governing bodies at the state and local level) were being complied with, reports would be readily available listing and totaling the number and outcomes of all such state and local investigations, prosecutions for inclusion in the US Follow-Up Report. This information would assist the US, the CERD and other readers to assess how widespread are such incidents, complaints, and prosecutions/discipline and how effective US governmental units have been in stemming the incidence of police abuse of racial or ethnic minorities. As noted in the media, the lack of such data has been labeled by a prominent US criminologist and consultant to the DOJ “a national embarrassment.” See http://www.nytimes.com/2015/08/12/us/data-on-use-of-force-by- police-across-us-proves-almost-useless.html?_r=0.

LINKS TO DOCUMENTS REFERRED TO IN THE TEXT OF THE SHADOW REPORT

 Link to ENDNOTES: http://www.cuapb.org/wp-content/uploads/2015/11/ENDNOTES-for-Shadow- Report.docx

 Link to ANALYSIS OF DOJ PATTERN AND PRACTICE ACTIVITY: http://www.cuapb.org/wp-content/uploads/2015/11/ANALYSIS-OF-DOJ-PATTERN-AND-PRACTICE- ACTIVITY-IN-THE-THREE-CITIES-CITED-IN-ITS-9.docx

 Link to EVIDENCE THAT THE US ASSERTION OF COMPLIANCE WITH USE OF FORCE STANDARD SET IN THE “BASIC POLICIES” IS FALSE: http://www.cuapb.org/wp-content/uploads/2015/11/EVIDENCE-THAT-THE-US-ASSERTION-OF- NATIONWIDE-COMPLIANCE-WITH-THE-USE-OF-FORCE-STANDARD-SET-IN-THE.docx

 Link to MISSED OPORTUNITIES IN 2015 TO PROMOTE THE STANDARDS IDENTIFIED IN THE CERD’S COs: http://www.cuapb.org/wp- content/uploads/2015/11/REVIEW-OF-MISSED-OPPORTUNITIES-in-2015-TO-PROMOTE-THE- STANDARDS-IDENTIFIED-IN-THE-CERD.docx

 Link to the STATE DEPARTMENT LETTER TO GOVERNORS 4/25/15: http://www.cuapb.org/wp-content/uploads/2015/11/State-Dept-Letter-to-Governors-on-Conclud.pdf

 Link to the STATE DEPARTMENT LETTER TO MAYORS 4/25/15: http://www.cuapb.org/wp-content/uploads/2015/11/State-Dept-Letter-to-Mayors-on-Concludi.pdf

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