Springdale (Arkansas) police arrested Jacob Hodges on August 13, 2019, for obstructing government operations and refusal to submit to arrest, both misdemeanors. On the day of his hearing, the prosecutor offered him a plea deal whereby Mr. Hodges would receive a reduced sentence if he pled guilty to at least one of the charges. However, Mr. Hodges refused the deal. Instead, Mr. Hodges’ public defender showed the prosecutor the video of his arrest.
After the prosecutor watched the video, the City offered to drop all charges against Mr. Hodges. The Deputy City Attorney prepared a contract for Mr. Hodges to sign. In the contract, the City of Springdale offers to “ask the court for an Order of Nolle Prosequi” in Mr. Hodges’ case. In exchange, Mr. Hodges must “release, acquit and forever discharge the City of Springdale from any and all claims, actions, rights, damages and/or compensation arising out of his interaction with law enforcement on or about August 13, 2019.” The contract also requires Mr. Hodges to “forfeit the firearm seized by Springdale Police Department on or about August 13, 2019.” To secure his freedom, Mr. Hodges signed the contract.
Is such a contract enforceable? Wouldn’t a person be under a considerable amount of duress or undue influence if his only choices were to sign a contract or face criminal prosecution? This is one of the principal arguments against plea agreements. Nevertheless, plea bargains are “prevalent for practical reasons.” In theory, they reduce the severity of a guilty person’s punishment in exchange for increasing the efficiency of the judicial process.
However, Mr. Hodges’ contract with Springdale is not actually a plea agreement, because he did not plead guilty to any wrongdoing whatsoever. He did not take a lesser charge or a reduced sentence. He walked out of the courtroom with his innocence fully intact. However, in the process, the City stripped him of his right to sue the City of Springdale for how the officers treated him during his arrest. The City also kept the twelve-gauge shotgun that had legally been in the trunk of his car the night he was arrested.
The Arrest: False accusations and excessive force.
Jacob Hodges was driving eastbound on Sunset Avenue at 10:50 PM on the night he was arrested. Two police cars started following him. According to those police officers, Mr. Hodges turned into the parking lot of an AT&T store, drove through the parking lot of Lowe’s, then turned back onto Sunset Avenue, headed the same direction. He drove another 1.3 miles, still with the police following him. The footage from inside the police cars contains no audio because, as the Springdale PD records manager notes, “[their] cameras are designed to basically go back in time 30 seconds prior to the time the officer turns it on, but the audio isn’t captured in that, only the visual.” However, one of the police officers, Christopher Sanders, had Mr. Hodges’ information – including his driver’s license photo – visible on his in-car police laptop while he followed Mr. Hodges.
Eventually, the police officers turned on their lights and pulled Mr. Hodges over in a parking lot, ostensibly for going “45 in a 40.” Neither officer asked Mr. Hodges for his name, or to provide his driver’s license. Instead, throughout the stop, the officers used their words to mischaracterize Mr. Hodges’ actions and to quote the law – as though talismanic repetition of certain words could justify their actions. They used the phrase “lawful order” thirteen times to describe their command that Mr. Hodges must “leave” his cell phone in the car and exit the vehicle, even though Arkansas is not one of the states that have statutes prohibiting individuals from failing to comply with lawful orders given by police officers during a traffic stop.
Indeed, Section 3.15 of the Arkansas Motor Vehicle and Traffic Laws and State Highway Commission Regulations instructs police officers: “[I]f you lawfully detain a person who is recording you, and you have R[easonable] S[uspicion] that he is dangerous, you can order him to put his phone away for officer safety purposes. But do not order him to stop recording unless you can articulate legitimate officer safety reason or distraction (e.g., Facebook live).” The officers did not articulate a safety reason during the arrest.
Afterward, the officers characterized Mr. Hodges as “super nervous” and “shaky.” However, Officer Hammons noted, “maybe he was nervous ‘cause it was his first time” – referring, apparently, to the fact that Mr. Hodges had never previously been stopped by the police. Officer Sanders’ similar sentiment regarding Mr. Hodges’ nonthreatening demeanor is also audible in the arrest video, when he says, “It wasn’t that he was trying to jerk me away from putting him there. He just wouldn’t flatten his arm back to get back here. He’s just some guy. He’s got no [prior] traffic [violations]!” Thus, it appears that the officers’ command that Mr. Hodges must not pick up his phone to record them — and that he must leave it in the car when he exits the vehicle — was not “lawful” at all. Thus, his noncompliance with that order could not have given rise to probable cause for his arrest.
In the video, Officer Sanders noted that Mr. Hodges’ parking-lot detour, 1.3 miles before the traffic stop for “speeding,” was the thing that raised the officers’ suspicions. Speaking with a man who appears to be his supervisor, Officer Sanders described Mr. Hodges’ turn as “super abrupt.” Officer Hammons explained, “If it hadn’t been for him trying to get us to pass him on Sunset…” He trailed off, and never finished this sentence. However, if it is indeed true that the officers had no reason to suspect Mr. Hodges of any suspicious behavior until they saw him turn into a parking lot, and that they were not surveilling him prior to the parking-lot detour, why did they follow him into the parking lot? The sum of the officers’ statements suggests that the police were actually tailing Mr. Hodges long before they stopped him — probably to learn more about his activities related to his political speech. However, the way he was driving made them believe he might know they were following him, which meant they had to choose between escalating or giving up.
Contradictions in the Statements of the Officers.
The arrest video shows Mr. Hodges’ arrest from two perspectives: The body-worn camera of Officer Christopher Sanders, who stood at the driver’s door of Mr. Hodges’ vehicle, and the body-worn camera of Officer Mitchell Hammons, who stood at the front passenger door of Mr. Hodges’ vehicle. Both officers held flashlights, which lit up the interior of the car.
Although both officers wrote in their reports that Mr. Hodges was “reaching” for something in the car, the reports conflict with each other, and the video shows that neither report is correct. Officer Sanders wrote that Mr. Hodges “attempted to reach across the vehicle and grab something.” Officer Hammons wrote that Mr. Hodges “began to reach under his seat.” In the video, Mr. Hodges keeps both hands either in front of his chest or on his thighs, except for when he picks up his cell phone and attempts to video the interaction.
Both officers acknowledged in real time that they knew Mr. Hodges was just picking up his phone. They did not appear to believe that his phone was dangerous, and Mr. Hodges did not reach for anything else after he picked up his phone. However, both officers later reported that Mr. Hodges “reached” for “something” in the car. This conflicts with the video. If, as the video suggests, the officers did not actually see Mr. Hodges reach for something that might have threatened the officers’ safety while he was detained, they may not have had probable cause to search his car.
Another conflict between the officers’ reports and the video is that Officer Sanders’ report describes Mr. Hodges as “shaking so violently you could hear it in his voice.” Officer Hammons’ report describes Mr. Hodges as “nervous to the point I was able to observe his hands physically shaking” and “sweating profusely.” However, in the video, neither shaking nor sweating is visible. In the video, Mr. Hodges appears to have answered calmly but evasively when Officer Sanders questioned him.
Escalation.
Instead of giving detailed responses to Officer Sanders’ questions about where he was coming from, where he was going, and where he lived, Mr. Hodges gave vague answers. Mr. Hodges offered his driver’s license and registration, which Officer Sanders refused. Officer Sanders ordered Mr. Hodges out of the vehicle, and he cited Pennsylvania v. Mimms, saying, “Pennsylvania versus Mimms says that I can manipulate you on a traffic stop, and I’m ordering you out of the car. It’s that simple, bud.”
“Why?”
“Doesn’t matter. I’m telling you to get out of the car, man.”
“Okay, well, I need to have my telephone with me at all times.” Mr. Hodges reached with his right hand toward his phone on the passenger’s seat, while Officer Sanders at the driver’s door and Officer Hammons at the passenger door watched with their flashlights.
“You can leave your phone right there.” Mr. Hodges picked up his phone. “I don’t want anything in your hands.” Mr. Hodges’ left hand was resting on his left thigh, and his right hand was now holding his phone in front of him.“Listen here, dude.”
“I have the right to film, sir.”
“Get outta the car.”
“I have the right to film.” Officer Sanders opened the door. Mr. Hodges was taking off his seatbelt with his left hand and holding his phone in his right hand, looking at the phone’s screen.
“Come on. It’s this easy. Stop reaching for stuff and get out of the car.” However, Officer Sanders did not step far enough back for Mr. Hodges to get out of the car without physically making contact with the officer.
“Okay,” said Mr. Hodges, while trying to switch from simply filming the incident to streaming the incident on Facebook live.
“Bro, stop!” Officer Sanders grabs Mr. Hodges’ upper left arm. “Get out of the car man! Get out of the car, dude!” Both officers are pulling Mr. Hodges out of the car. “Get out of the car! Stop!”
“Okay. Okay. Sir.”
Force.
Officer Sanders began pulling Mr. Hodges out of the vehicle by his left arm, and Officer Hammons came around the back of the vehicle to help. They pulled Mr. Hodges out of the vehicle, and pushed him until he was lying, face-down, on the parking lot. Officer Hammons appears on the video to be kneeling on Mr. Hodges’ left shoulder, holding Mr. Hodges’ left hand against his back. Officer Sanders appears to be kneeling on Mr. Hodges’ right shoulder, pressing Mr. Hodges’ right hand – still holding the illuminated cell phone – against the asphalt. While Officer Sanders had Mr. Hodges’ right hand pinned against the ground, he ordered Mr. Hodges to put his arm behind his back. Officer Sanders repeated the order through gritted teeth, with his left hand in Mr. Hodges’ hair, pushing his face into the pavement, continuing to pin Mr. Hodges’ right hand to the ground.
“I can’t reach. Hey, hey. Sir. You have me, sir.”
“Your right hand. Put it behind your back, dude.” However, at the same time as Officer Sanders was repeatedly ordering Mr. Hodges to move his right hand to his back, the officers were preventing Mr. Hodges from moving his arms by kneeling on his shoulders. Although Mr. Hodges had apparently put his left hand to his back already, and Officer Hammons was able to hold it there without trouble, Officer Sanders acted as though Mr. Hodges was refusing to put his right hand behind his back. Officer Sanders was pinning Mr. Hodges’ right hand to the ground. Officer Sanders characterized this as Mr. Hodges’ refusal to comply.
“Sir, if you will let me.” Mr. Hodges asked if the officers’ body cams were on, and whether he was being filmed. Officer Sanders confirmed that Mr. Hodges was being filmed, and Mr. Hodges proposed a strategy that made it clear that it was Officer Sanders who was preventing Mr. Hodges from following the order. He said, “Okay, well Sir, please put my hand behind my back, and I’ll be okay.”
Rather than continuing to order Mr. Hodges to comply with an impossible command, Officer Sanders used both of his hands to pull Mr. Hodges’ now-empty right hand up toward the sky, until Mr. Hodges’ arm was straight, with its elbow pressed against the gear on Officer Sanders’ duty belt. Holding Mr. Hodges’ arm up high, Officer Sanders put a handcuff on Mr. Hodges’ right wrist, then brought Mr. Hodges’ right hand down to Mr. Hodges’ back, so it could be handcuffed to Mr. Hodges’ left hand.
The officers’ conduct injured Mr. Hodges’ shoulder. Similarly, Officer Sanders’ use of force in shoving Mr. Hodges’ face against the asphalt left a substantial bruise on Mr. Hodges’ face.
Officer Sanders observed, ““He might have a weapon.” Officer Hammons added, “He’s got ammo in the back [of the vehicle].” Officer Sanders reached into the pocket of Mr. Hodges’ shorts, which stretched backward and slipped down to reveal his underwear. Mr. Hodges’ right hand – still handcuffed – dipped toward the back of his shorts, as though to cover his underwear. Officer Hammons said, “Stop! Do not reach for anything!” He pulled Mr. Hodges’ shorts back up to cover his underwear.
Mr. Hodges said, “Sir, I’m not, sir.” Then, he added, “Yes sir, yes sir. Anything you guys say. I’m just telling you right now, I have the right to a lawyer.”
Asserting Fourth and Fifth Amendment rights raises officers’ suspicions.
Officer Hammons rolled Mr. Hodges onto his right side and flipped Mr. Hodges’ shirt up to show his naked torso. Seeing nothing but skin, Officer Hammons pulled the shirt back down. He asked, “Hey, fella, if we let you sit up, are you done?”
“Yes, sir. I promise. I will completely comply. I would like to tell you I have my hunting rifle in the trunk. It’s unloaded. It’s just in my trunk.” The officers rolled Mr. Hodges over and up into a sitting position, then helped him stand. They walked him over to the police car. Mr. Hodges said, “I’ve got to call my lawyer now.”
Officer Sanders said, “Not right now.”
“No, I have the right to remain silent.”
“No, listen to me. Listen to me. Right now, we’re not asking you any questions. Whenever we get you to the jail and we book you in, then you can have a phone call. Until then, you don’t get a lawyer. I’m not asking you any questions. You have the right to have an attorney with you during questioning. And I’m not asking you any questions. Am I asking any questions? Am I asking any questions? Am I asking any questions? No. So you don’t need a lawyer now.”
“You don’t have the right to search my car.”
Officer Sanders walked back toward Mr. Hodges’ car, where the driver’s door was still approximately one or two inches open. He shone his flashlight around the car.
Officer Hammons asked, “All right, so, what do you mean search your car? We haven’t even asked you to search your car.”
“Well I did just get pulled out of my car. I just need my lawyer.”
The Search: Unreasonable in every category.
Without a search warrant, police officers in Arkansas may only conduct certain, limited searches of a person’s vehicle. Analyzing what actually happened on the night of Mr. Hodges’ arrest through the lens of what is permitted in each type of search, as laid out by the Arkansas Association of Chiefs of Police, suggests that what the officers did was a violation of Mr. Hodges’ Fourth Amendment rights, since the search exceeds the scope of every valid type of warrantless vehicle search.
Inventory Search?
In Mr. Hodges’ arrest video, the officers describe their decision to open the trunk of Mr. Hodges’ car and roll back the cargo cover that blocked their view of the contents as an inventory search. However, inventory searches are limited to “[a]ll vehicles towed at the direction of an officer of this department,” and Mr. Hodges’ vehicle had not been towed before the officers opened the trunk and searched it.
Furthermore an inventory search “is not a search for evidence or contraband and is not a search with an investigative purpose.” However, when the officers found a prescription bottle with Mr. Hodges’ name on it, they checked to see whether the medicine inside had actually been prescribed to him, as though searching for evidence of illegal drug activity. Additionally, they seized a Spanish-language flyer from the vehicle as “evidence” to turn over for further investigation. This investigative purpose establishes that – even if officers are permitted to inventory the contents of a vehicle prior to its being towed – this search was not a valid inventory search.
Vehicle Frisk?
Although the officers do not mention it in the video, their decision to search Mr. Hodges’ car while he sat, handcuffed, in the back of a police vehicle might have been a “vehicle frisk.” Although a vehicle frisk is permitted when the officers have “reasonable suspicion to believe that a lawfully stopped vehicle contains a weapon.”
Since Mr. Hodges told the officers there was a weapon in the trunk of his vehicle, the officers could argue that their search was justified as a vehicle frisk. However, a vehicle frisk is “limited to subject’s immediate area of control, which would be the passenger compartment of the vehicle,” and it is “limited to those areas in the passenger compartment capable of holding a weapon.” Since the officers who performed the search opened the vehicle’s trunk and retracted the cargo cover to access the weapon Mr. Hodges had described, the search exceeded the permissible scope of a vehicle frisk.
Search Incident to Arrest?
Since Mr. Hodges was handcuffed in the back of a police car while the police searched his vehicle, this may have been a “search incident to arrest.” However, “[a] search incident to arrest may not take place once the arrestee is secured in handcuffs and secured in a law enforcement vehicle unless the officer has reasonable grounds to believe that the vehicle contains evidence of the particular crime for which the subject was arrested.” In Mr. Hodges’ case, he was arrested for obstruction of government operations. Mr. Hodges’ words and physical actions were the only evidence that could support such an arrest. Therefore, there could have been no additional evidence of his alleged crime – in his vehicle, or anywhere else.
Furthermore, a search incident to arrest is “limited to the arrestee’s immediate area of control (passenger compartment only) but is a thorough search.” Only “[i]f the vehicle’s trunk is in the immediate area of control of the arrestee and accessible from the passenger compartment” may the trunk be searched incident to arrest. Since the trunk of Mr. Hodges’ vehicle was covered by a cargo cover, and separated from the driver’s seat by the distance of the back seat and the barrier it represented, the trunk was neither accessible from the passenger compartment nor within Mr. Hodges’ area of control. Therefore, this could not have been a valid search incident to arrest.
Probable Cause for a Warrentless Search?
Since this search exceeded the scope of a valid inventory search, vehicle frisk, or search incident to arrest, we are left to wonder whether it might have been justified as a warrantless search of a vehicle based on probable cause. This type of search is permissible under Carroll v. U.S. when, due to the mobility of motor vehicles that would make it easy for a driver to just drive away with the evidence, it would be impracticable for officers to get a search warrant before searching the vehicle for contraband. However, since Mr. Hodges had already been handcuffed and placed in the back of a police vehicle, there was no risk that he would drive off in his car to hide any evidence.
Furthermore, the police never established that they had probable cause to believe his car contained contraband. They said he was “nervous” and “shaking,” but neither of them said (or wrote in their statements afterward) that he appeared to be under the influence of any illicit substance. Indeed, Mr. Hodges’ sobriety is confirmed in his booking records. The police officers first accused him of exceeding the speed limit, then of refusing to submit to arrest. Neither of these allegations involve evidence that might have been found in Mr. Hodges’ vehicle.
Only if the officers had probable cause to believe that Mr. Hodges was committing a crime (perhaps “conspiracy” as Officer Sanders suggested to the other offices that night, primarily based on the presence of Spanish-language flyers in Mr. Hodges’ vehicle) where the evidence thereof was likely in his vehicle could they rely on probable cause exception to the search warrant requirement – but even then, this search likely does not meet the standards of validity, since the officers had plenty of time to get a search warrant, but they never applied for one.
The gun: Seized for “safekeeping,” but kept for the financial benefit of law enforcement.
As the arrest video shows, Officer Sanders spoke to Mr. Hodges while he was driving Mr. Hodges to the station for booking. He said, “Hey, your shotgun is gonna be here at the police department. We can’t leave it in the car when the car gets impounded, so it’s gonna be logged into our evidence as ‘safekeeping.’ You’ll need to get in contact with them and schedule a time to come pick it up. It’s not being seized. It’s not being kept from you. It’s just being kept here for safekeeping because we can’t let it go to the impound yard with the car.” Nevertheless, in the end, the City of Springdale required Mr. Hodges to forfeit this shotgun in exchange for having both of his charges dropped.
Civil asset forfeiture is a controversial practice whereby police can legally seize – and keep – property, money, or assets if they believe it may be connected with criminal activity. In Arkansas, 100% of the proceeds from such forfeiture go to law enforcement: 80% to the police, and 20% to the Crime Lab Equipment Fund. The Arkansas legislature passed a law in April 2019 (four months prior to Mr. Hodges’ arrest) prohibiting civil asset forfeiture “unless the person from whom the property is seized is convicted of a felony offense that related to the property being seized and that permits the forfeiture of the property.” However, the law provides an exception from this felony conviction requirement if the person from whom the property is seized has “[a]greed in writing with the prosecuting attorney and other parties as to the disposition of the property.”
In Mr. Hodges’ case, his agreement to forfeit his shotgun for the financial benefit of his arresting officers was part of the contract he signed in exchange for the City of Springdale dropping two misdemeanor charges against him. Thus, even though Arkansas lawmakers clearly intended to limit civil asset forfeiture to felony cases, Mr. Hodges – a person who was never even accused of a felony – was pressured to “agree” to forfeit his asset to the City of Springdale under threat of criminal prosecution.
Moreover, these events arguably only arose because the Springdale Police conducted an illegally discriminatory stop, issued unlawful orders when Mr. Hodges attempted to record their actions, used excessive force the process of handcuffing him, conducted a search that violated Mr. Hodges’ Fourth Amendment rights, and filed conflicting reports after the fact. Although such allegations should be carefully examined – ideally in a civil action, in front of a judge – the City of Springdale decided to prevent any such accountability, and made sure the police were financially rewarded for their behavior by the arrestee instead.
Context: Was this a pretextual stop in the context of illegal discrimination by local law enforcement?
The officers involved in Mr. Hodges arrest said they believed he was an “organizer” who was affiliated with protests against the Washington County Sheriff’s participation in the 287(g) program, a “controversial deportation program” that was then affecting the Springdale immigrant community.
In August of 2019, when Mr. Hodges was arrested, U.S. Immigration and Customs Enforcement (“ICE”) was conducting raids that terrified Springdale residents. Many Springdale immigrants work in chicken plants similar to the Mississippi plants that had been raided by ICE in early August. The Mississippi ICE raids on chicken plants led to the roundup of nearly 700 plant workers, many of whom were required to appear before a federal immigration judge for deportation proceedings. Within days, Springdale residents spotted an ICE bus parked at a Springdale hotel. Several people, including Mr. Hodges, posted Facebook Live videos of the ICE bus at the hotel. All this happened just a few days before Mr. Hodges was arrested, and sets the scene for the arrest.
Police seize a Spanish-language flyer as “evidence.”
While Mr. Hodges was handcuffed in the back of the police car, the officers searched the trunk of Mr. Hodges’ vehicle, and they found flyers in Spanish. To them, this was evidence linking Mr. Hodges (during his arrest) with protests against ICE raids and the 287(g) program in Washington County. Although being someone who disagrees with Washington County’s participation in a federal program, carrying Spanish-language flyers in the trunk of one’s car, and owning a shotgun that you carry in a case in the trunk of your car are all legal, the officers put these three things together and decided to turn the “evidence” over for further investigation. Their conversation after Mr. Hodges’ arrest establishes this fact:
“But those are all in Spanish, right? All of the flyers? Is it in English on the back?”
“Uh, I don’t know.”
“Yeah, they’re all in Spanish. And he’s got a hunting rifle. Which kinda gives me the heebie jeebies that he’s been camping out with that rifle, waiting for ICE to show up somewhere.”
“Hm, that’s pretty weird.”
“They got better things to do than come to Springdale. ICE ain’t coming here any time soon.”
“Well, they posted that big thing on Facebook last week that ICE–”
“Oh, the big scare?”
“ICE stuff’s been located here in Springdale for the Tyson & George’s–”
“You know what that was? That was one of their vans, and they stopped here to spend the night at a hotel, ‘cause they were on their way to like Louisiana or somewhere.”
“One of the transport vans?”
“Yeah, it was.”
“With his actions, it just really makes me wonder if he’s not trying to do some conspiracy thing.”
“You can always ask him.”
“Well, he won’t talk to me now. I Mirandized him. He said, “Well you read me my rights. I don’t have to talk to you. I’m not going to.”
Ultimately, the officers decided to send a copy of the Spanish-language flyer they took from Mr. Hodges’ trunk to the “JTF.” The JTF was likely a joint task force, since Washington County’s agreement with ICE designates some Washington County employees as “task force officers” who are assigned to “task force operations supported by ICE.”
Illegal Discrimination?
If the officers intended, when they pulled Mr. Hodges over, to use an accusation of his driving “45 in a 40” as an excuse to search for evidence of a more serious crime (like conspiracy), then this was a pretext stop, of the type that is increasingly criticized by legislators and the public.
In a 2020 amicus brief to the Supreme Court, urging the Court to “hold that pretextual traffic stops violate the Fourth Amendment,” the Center on Race, Inequality, and the Law pointed out that three states have already “adopted or expressed support” for a rule banning pretext stops: Washington, New Mexico, and Alaska. Pretext steps disproportionately hurt – and even lead to the unjustified death of – members of minority groups.
Arkansas, too, has set certain limits on arrests and searches pursuant to pretest stops. The policy manual published by the Arkansas Association of Chiefs of Police states that in order for Arkansas officers to search a vehicle pursuant to the driver’s arrest, “[t]he arrest must be lawful and must be a full-custodial arrest. The arrest must not be pre-textual in nature, in other words, the decision to arrest must not be based upon a desire to search the vehicle incident to arrest in a case where normally the officer should not have made a custodial arrest.”
Although the federal government has plenary power over immigration, state and local government personnel are prohibited from discriminating against individuals on the basis of things like race or national origin. Indeed, the U.S. Department of Justice specifically addresses situations like this on its website, writing:
There have been a number of cases in the news in which police are alleged to have filed fraudulent reports or fabricated evidence against persons of a particular race or national origin. Is this a violation of Title VI?
The fabrication of evidence and/or filing of false charges against any person is a crime. Persons who believe this has occurred should contact the FBI. If a law enforcement officer is targeting persons of a particular race, color, national origin, sex, or religion for harassment, unfair treatment, denial of services, or other discriminatory actions, he or she is also violating Title VI and the Crime Control Act. Every law enforcement agency is responsible for ensuring that its employees carry out their duties in a nondiscriminatory manner. Failure by an agency’s management to take appropriate action concerning an employee engaged in discriminatory treatment of individuals or groups based upon their race, color, national origin, sex, or religion would also be a violation of Title VI and/or the Crime Control Act and could jeopardize the agency’s assistance from DOJ.
https://www.justice.gov/crt/nondiscrimination-basis-race-color-national-origin-sex-religion-or-age-law-enforcement-programs
Was the Springdale Police officers’ conduct motivated by an impermissible intent to discriminate against individuals on the basis of race or national origin? Jacob Hodges is a United States citizen who is fluent in Spanish. Careful viewing of his arrest video suggests that the officers perceived Mr. Hodges as sympathetic with people of other national origins. The video shows that the officers decided to:
- Tail Jacob Hodges across town, in and out of parking lots, for more than a mile;
- Accuse him of speeding even though their suspicions were more strongly related to driving and speech that they characterized as evasive;
- Shout baseless commands like “stop reaching” “leave your phone right there” as though they were “lawful orders” and talismans of appropriate police response, even in the absence of any video evidence that Mr. Hodges was “reaching” or otherwise threatening the officers when they told him to stop (or at any other time);
- File conflicting reports about Mr. Hodges’ actions that are not substantiated by video from either officer’s body-worn camera;
- Physically prevent Mr. Hodges from complying with their command to put his right hand behind his back;
- Pull his arm straight out from his back and hold it there for the purpose of applying a handcuff, thus injuring his shoulder; and
- Remove “evidence” of Spanish-language speech from his vehicle to send to other law enforcement officers.
If the conduct of the Springdale Police was discrimination on the basis of race or national origin, it makes perfect sense that the City Attorney’s office would want Jacob Hodges to waive his right to take any legal action against them. However, silencing the voice of an innocent man who has been treated unjustly by the police defeats the purpose of the American justice system.
Conclusion: Arkansas can fix this.
The Supreme Court recently decided to allow arrestees to bring civil rights actions against their arresting officers if their cases get dismissed. Hopefully, this will improve the deterrent effect that the threat of civil litigation is supposed to have against police misconduct. Up to this point, the U.S. Commission on Civil Rights has found that “civil lawsuits brought by individual victims of police misconduct have not deterred police misconduct or held police officers and their police departments accountable for their misconduct.”
Unfortunately, the Court’s 2022 decision in Thompson v. Clark offers no recourse for arrestees like Jacob Hodges – even though Mr. Hodges’ case was dismissed – because Mr. Hodges was required to waive his right to sue in exchange for the City’s decision to drop his charges.
To prevent injustice, Arkansas should not enforce any “plea” agreement formed under circumstances where an innocent person (as determined based on the prosecutor’s decision to drop all charges) has been forced to waive their rights or forfeit their property in exchange for their freedom. Freedom is guaranteed to innocent people. Arkansas should not allow any city to strip an innocent person of their rights or their property by enforcing such an unconscionable contract.
Additionally, Arkansas should amend the “agreement” exception to its civil asset forfeiture statute so that no exception can defeat the legislative purpose of the law. Only people who have been actually charged with felonies should even be asked to “agree” to forfeit their property.