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Mr. President, long ago when I was a student in Levittown, Pennsylvania, the American Civil
War was taught as a history lesson. Today in Ocala, Florida, the Lost Cause of the Confederacy
is an ongoing current event. Too many folks here have not accepted the outcome of the
American Civil War, including powerful people like lawyers, judges, and perhaps Mr. Bentley.
The murder of 9 African-Americans in Charleston, South Carolina, on June 17, 2015 was a time
of change for many Americans on the Confederate flag issue. But not in Marion County. Instead,
Ocala doubled-down on its support for the flag. Unfortunately Confederate flags were used in a
racial incident at the West Port High School to commit a hate crime against an African-American
student, as defined by Fla. Stat. 775.085 Evidencing prejudice while committing offense;
reclassification, because the offense involved the race/color of a black student by three white
students who used Confederate flags in a threat of force, to injure, intimidate or interfere with the
African-American student while she was attending public school. Thank you.
Sincerely,
Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Enclosures
Legacy of Hate
Central Florida, Fifth Judicial Circuit, home of
the all-white bench, a Jim Crow bench in 2016
http://www.ocala.com/news/20160129/racial-incident-at-west-port-3-students-face-discipline-after-taunts-while-waving-confederate-flags
Three West Port High School students who taunted classmates on Thursday by
waving Confederate flags during school will be disciplined, according to Marion
County School District officials.
West Port High School Principal Jayne Ellspermann said moments after the white
students two boys and a girl began taunting, an argument ensued and one
black female student threw a punch at the taunters. Within a few minutes,
teachers and the school's resource officer broke up the disturbance, which at that
point was almost entirely verbal.
Poor decisions of a few of our students led to this, said Ellspermann, adding
that she was pleased with the quick response from staff to keep things from
escalating.
Ellspermann, who was the nation's principal of the year in 2014, said social media
after the fact is now the biggest problem.
By late Thursday night, and all day Friday, posts on Facebook have portrayed the
incident as a race riot. School staff are looking into reports of related videos on
http://www.ocala.com/news/20160129/racial-incident-at-west-port-3-students-face-discipline-after-taunts-while-waving-confederate-flags
Facebook.
Ellspermann said that many more students, who are escalating the situation on
Facebook, will be disciplined by the time their investigation is completed.
Some people may argue that the students have freedom of speech when it comes
to Facebook postings, or even for waving the Confederate flags. The district says
that is not the case if those actions are causing a disruption at school.
For example: If an after-school Facebook post indicates that one person will do
harm to another student at school, the district can act and impose a suspension
because the actions could disrupt school.
Marion County Public Schools spokesman Kevin Christian said the flag-waving
students' prime objective was to disrupt school. And for that, they can be
disciplined.
It was a planned, calculated incident, Christian said. They were trying to solicit
a reaction.
One West Port High parent, Erika Boone, has a freshman attending the school.
She had heard rumors of race riots and called the Star-Banner. Once she was
contacted, she said she had since found out that the situation was handled
properly at West Port, but wished she would have known about it.
They should have called all the parents, said Boone, specifically talking about
the district's automated calling system.
The Ocala Police Department issued the female student who threw a punch a
citation in lieu of arrest, Christian said on Friday.
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NEIL J. GILLESPIE
NEIL J. GILLESPIE
8092 SW 115TH LOOP
OCALA FL 34481-3567
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Neil Gillespie
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9/29/2016
The Ocala Star-Banner reported January 29, 2016, "Racial incident at West Port: 3 students face
discipline after taunts while waiving Confederate flags." Meanwhile, the black schoolgirl being
intimidated by white supremacists with Confederate flags was wrongly cited in lieu of arrest.
U.S. Attorney Lee Bentley has jurisdiction, but there is no evidence USAFLM Bentley sought
justice for the black schoolgirl intimidated by white supremacists with Confederate flags.
Fine, I bear witness to the ongoing plague of white supremacy racism in central Florida.
Enclosed is my complaint to The Florida Bar against School Board attorney Steven Eleazer Lake
for white supremacy racial discrimination, and obstruction of justice for concealing records.
The Ocala Police Department has not provided records for the "Racial incident at West Port: 3
students face discipline after taunts while waiving Confederate flags." See enclosed.
In my view this offense was a hate crime under FS 775.085 Evidencing prejudice while
committing offense; reclassification, because the offense involved the race/color of the black
student by three white students who used Confederate flags in a threat of force, to injure,
intimidate or interfere with the black student while she was engaged in a federally protected
activity, attending public school. 18 U.S.C. 245. The black schoolgirl was justified in punching
the perpetrator(s) under FS 776.012(1), use or threatened use of force in defense of person.
My Statement Of Candidacy (for president) appears on the Federal Elections Commission
website. It was accepted by the FEC on September 11, 2016, FEC-1098470, Candidate ID
P60022993. If elected, I plan, inter alia, a new type of Reconstruction for certain parts of the
South, to protect the rights of African-Americans forgotten by the US Department of Justice.
A joint statement by the American Bar Association and the NAACP Legal Defense and
Educational Fund addressing the troubling and destabilizing loss of public confidence in the
American criminal justice system is enclosed as part of the Florida Bar complaint. Thank you.
Sincerely,
Neil J. Gillespie, 8092 SW 115th Loop, Ocala, Florida 34481, Email: neilgillespie@mfi.net
http://www.ocala.com/news/20160129/racial-incident-at-west-port-3-students-face-discipline-after-taunts-while-waving-confederate-flags
Three West Port High School students who taunted classmates on Thursday by
waving Confederate flags during school will be disciplined, according to Marion
County School District officials.
West Port High School Principal Jayne Ellspermann said moments after the white
students two boys and a girl began taunting, an argument ensued and one
black female student threw a punch at the taunters. Within a few minutes,
teachers and the school's resource officer broke up the disturbance, which at that
point was almost entirely verbal.
Poor decisions of a few of our students led to this, said Ellspermann, adding
that she was pleased with the quick response from staff to keep things from
escalating.
Ellspermann, who was the nation's principal of the year in 2014, said social media
after the fact is now the biggest problem.
By late Thursday night, and all day Friday, posts on Facebook have portrayed the
incident as a race riot. School staff are looking into reports of related videos on
http://www.ocala.com/news/20160129/racial-incident-at-west-port-3-students-face-discipline-after-taunts-while-waving-confederate-flags
Facebook.
Ellspermann said that many more students, who are escalating the situation on
Facebook, will be disciplined by the time their investigation is completed.
Some people may argue that the students have freedom of speech when it comes
to Facebook postings, or even for waving the Confederate flags. The district says
that is not the case if those actions are causing a disruption at school.
For example: If an after-school Facebook post indicates that one person will do
harm to another student at school, the district can act and impose a suspension
because the actions could disrupt school.
Marion County Public Schools spokesman Kevin Christian said the flag-waving
students' prime objective was to disrupt school. And for that, they can be
disciplined.
It was a planned, calculated incident, Christian said. They were trying to solicit
a reaction.
One West Port High parent, Erika Boone, has a freshman attending the school.
She had heard rumors of race riots and called the Star-Banner. Once she was
contacted, she said she had since found out that the situation was handled
properly at West Port, but wished she would have known about it.
They should have called all the parents, said Boone, specifically talking about
the district's automated calling system.
The Ocala Police Department issued the female student who threw a punch a
citation in lieu of arrest, Christian said on Friday.
Page 1 of 2
Neil Gillespie
From:
To:
Cc:
Sent:
Attach:
Subject:
9/22/2016
Page 2 of 2
9/22/2016
https://webforms.fec.gov/webforms/form2/final.htm
ACCEPTED FEC-1098470
The Candidate ID : P60022993
09/11/2016 01 : 52
Image# 201609119030767061
PAGE 1 / 2
FEC FORM 2
STATEMENT OF CANDIDACY
1. (a) Name of Candidate (in full)
Neil J. Gillespie
(b) Address (number and street)
FL
4. Par ty Affiliation
5. Office Sought
P60022993
3. Is This
Statement
34481
New
(N)
OR
Amended
(A)
Presidential
UN
2016
election(s).
(year of election)
NOTE: This designation should be filed with the appropriate office listed in the instructions.
(a) Name of Committee (in full)
FL
Ocala
34481
I certify that I have examined this Statement and to the best of my knowledge and belief it is true, correct and complete.
Signature of Candidate
Neil J. Gillespie
Date
[Electronically Filed]
09/11/2016
NOTE: Submission of false, erroneous, or incomplete information may subject the person signing this Statement to penalties of 2 U.S.C. 437g.
PAGE 2 / 2
Image# 201609119030767062
)(&0,6&(//$1(2867(;75(/$7('72$5(32576&+('8/(25,7(0,=$7,21
Form/Schedule: F2N
Transaction ID :
Memo #1: I am a qualified person with a disability. I request disability accommodation under the Americans with
Disabilities Act (ADA), as amended, 42 U.S.C. 12181 et. seq, including the ADA Amendments Act of 2008, as
amended, and the Rehabilitation Act of 1973, as amended, 29 U.S.C. 701 et. seq, including Section 504 of the
Rehabilitation Act, as amended, and Section 508 of the Rehabilitation Act, as amended. This disability
accommodation request also seeks a prohibition against disability discrimination. Memo #2: I am filing a FEC Form 2:
Statement of Candidacy, but got this message at the end: "Are you sure you want to submit this report electronically?
Filing a Form 1 through this system constitutes an electronic filing. Committees are required to file electronically if total
contributions received or total expenditures made exceed, or are expected to exceed, $50,000 in any calendar year.
Committees who are not required to file electronically, but choose to do so, must continue to file electronically for that
calendar year. 11 C.F.R. 104.18"
Form/Schedule:
Transaction ID:
This is a complaint against Steven Eleazer Lake for white supremacy racial discrimination, and
obstruction of justice, against an African-American female student of West Port High School,
who was apparently punished for being a victim of a hate crime by three white students, and
concealing records thereto, specifically a report of the incident that I requested under 119 et seq.
Steven Eleazer Lake, Florida Bar ID # 54250
Legal Department, The School Board of Marion County, Florida
512 SE 3rd St., Ocala, FL 34471-2212
Email: Steven.Lake@marion.k12.fl.us
The Ocala Star-Banner reported January 29, 2016, "Racial incident at West Port: 3 students face
discipline after taunts while waiving Confederate flags." A copy of the story is enclosed.
The Ocala Star-Banner reported inter alia the following :
West Port High School Principal Jayne Ellspermann said moments after the white students
two boys and a girl began taunting, an argument ensued and one black female student
threw a punch at the taunters.
Marion County Public Schools spokesman Kevin Christian said the flag-waving students'
prime objective was to disrupt school. And for that, they can be disciplined. It was a
planned, calculated incident, Christian said. They were trying to solicit a reaction.
The Ocala Police Department issued the female student who threw a punch a citation in lieu
of arrest, Christian said on Friday.
As of today I do not show a response from Mr. Lake. Instead I got an email non-response from
nonlawyer Kevin Christian Monday, September 19, 2016, see enclosed.
In my view, the Ocala Star-Banner story reported that three white students used a Confederate
flag in a threat of force, to injure, intimidate or interfere with a black student while attending
public school, a federally protected activity, who responded with justifiable force, a punch.
In my view the incident was a hate crime under 775.085 Evidencing prejudice while committing
offense; reclassification, because the offense involved the race/color of the black victim by three
white students who used a Confederate flag in a threat of force, to injure, intimidate or interfere
with the black victim while she was engaged in a federally protected activity, attending public
school, 18 U.S. Code 245. The hate crime victim was justified in punching the perpetrator(s)
under 776.012(1) Use or threatened use of force in defense of person. Also see,
Fla. Stat. 1006.13 Policy of zero tolerance for crime and victimization
Fla. Stat. 1006.147 Bullying and harassment prohibited
Fla. Stat. 784.048 Stalking; definitions; penalties
Principal Jayne Ellspermann is the wife of David R. Ellspermann, Marion County Clerk of Court
& Comptroller. David Ellspermann was successfully sued for employment discrimination, and
the countys insurer paid a settlement of $125,000 to Antonio J. Ortiz-Carballo, see,
Ortiz-Carballo v. Ellspermann, Florida Middle District Court, Case No. 5:08-cv-00165
District Judge Wm. Terrell Hodges, presiding, Nature of Suit: 442 Civil Rights: Jobs
Reportedly Ellspermann told Ortiz-Carballo, There is to be no Spanish spoken in my office
Lawsuit and Settlement documents in Ortiz-Carballo v Ellspermann
https://www.scribd.com/document/271966970/
David Ellspermann used taxpayer funds to purchase Confederate flag(s) for display on Marion
County government property. David Ellspermann displays images of Confederate currency on
the Clerks public website. David Ellspermann displays a neo-Confederate fairy tale account of
the American Civil War on the Clerks public website, see Marion County's 150 Year
Commemoration of the War Between the States 1861-1865. Fairy tale accounts of the American
Civil War, and slavery in the United States, undermine the civil rights of African-Americans.
An inscription on Johnny Reb, the Marion County Confederate Soldier Statue, states,
http://www.flpublicarchaeology.org/civilwar/monuments/ocala/front-nw-face.jpg.php
There is no mention of Abraham Lincoln, et al., just the slave-owning U.S. presidents: One in
four U.S. presidents were slaveholders: 12 owned slaves at some point in their lives. Tellingly, 8
presidents owned slaves while living in the White House. Also noteworthy is Nathan Bedford
Forrest a Confederate lieutenant general during the American Civil War...who served as the first
Grand Wizard of the Ku Klux Klan...Forrest was accused of war crimes at the Battle of Fort
Pillow. The Constitution described on the Confederate statue means the original Constitution of
1789 that permitted slavery, not the U.S. Constitution and Thirteenth Amendment (1865),
Fourteenth Amendment (1868), and Fifteenth Amendment (1870) in place when the statue was
erected in 1908.
"Four score and seven years ago our fathers brought forth...a new nation, conceived in Liberty,
and dedicated to the proposition that all men are created equal... Now we are engaged in a great
civil war, testing whether that nation... can... endure...we here highly resolve...that this nation
shall have a new birth of freedom; and that this government of the people, by the people, for the
people, shall not perish from the earth." - Abraham Lincoln
The Military Order Of The Stars and Bars, Florida, Marion County, Marion Dragoons #164
Newsletter Winter 2013, page 8: Lord, we give thanks to you for the blessing of being able to
honor our ancestors who gave their all to protect us, defend our honor and uphold the original
intent of our Constitution. (Slavery in the United States)
Marion County Florida has a long history of lynching, described in Lethal Punishment: The End
of Lynching in Marion County, Florida by Margaret Vandiver. Chapter Five: The First Time a
Charge Like This Has Ever Been Tried in the Courts pp. 70-88. Excerpts below from page 70
and page 72 respectively:
"Between 1885 and 1930, nineteen black men were lynched
in Marion County, nine of them for sexual offenses. Marion
County lynchings were public affairs, often carried out before
hundreds of witnesses, but none of the perpetrators was
prosecuted."
"Marion County mobs sometimes left a placard or a sign
attached to the body of the victim; when Robert Larkin was
lynched in 1893, the mob left a placard reading, "Done by
300 of the best citizens of this county."
Pages 71-72, "A striking aspect of lynching in Marion County is the frequency with which mobs
took their victims from the custody of law enforcement, apparently meeting little or no
resistance. Of the fifteen cases in which I have been able to determine the circumstances of the
suspect's capture by the mob, all but two involved suspects already in the custody of law
enforcement officers."
Lethal Punishment: Chapter Five, The End of Lynching in Marion County, Florida, online see,
https://www.scribd.com/document/284372795/The-End-of-Lynching-in-Marion-County-Florida
The American Bar Association (ABA) and the NAACP Legal Defense and Educational Fund
have issued a joint statement addressing the "troubling and destabilizing loss of public
confidence in the American criminal justice system."
The enclosed statement notes the "recent spate of killings of unarmed African American men and
women at the hands of white law enforcement officers." While the ABA and the Fund believe
that "the overwhelming percentage" of police, prosecutors and judges are not racist, "explicit
bias remains a real factor in our countryand criminal justice systemand implicit or
unconscious bias affects even those who may believe themselves to be fair," the statement says.
"The American criminal justice is unquestionably at a moment of crisis," the statement says.
Under penalties of perjury, I declare that the foregoing facts are true, correct and complete.
Sincerely,
Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Telephone: 352-854-7807
Email: neilgillespie@mfi.net
Enclosures
Below is the image of Clerk David R. Ellspermann, and his Confederate Currency Archives
found on the Marion County Clerk of Court public website at this URL,
http://www.marioncountyclerk.org/index.cfm?Pg=historicaldocuments
http://www.ocala.com/news/20160129/racial-incident-at-west-port-3-students-face-discipline-after-taunts-while-waving-confederate-flags
Three West Port High School students who taunted classmates on Thursday by
waving Confederate flags during school will be disciplined, according to Marion
County School District officials.
West Port High School Principal Jayne Ellspermann said moments after the white
students two boys and a girl began taunting, an argument ensued and one
black female student threw a punch at the taunters. Within a few minutes,
teachers and the school's resource officer broke up the disturbance, which at that
point was almost entirely verbal.
Poor decisions of a few of our students led to this, said Ellspermann, adding
that she was pleased with the quick response from staff to keep things from
escalating.
Ellspermann, who was the nation's principal of the year in 2014, said social media
after the fact is now the biggest problem.
By late Thursday night, and all day Friday, posts on Facebook have portrayed the
incident as a race riot. School staff are looking into reports of related videos on
http://www.ocala.com/news/20160129/racial-incident-at-west-port-3-students-face-discipline-after-taunts-while-waving-confederate-flags
Facebook.
Ellspermann said that many more students, who are escalating the situation on
Facebook, will be disciplined by the time their investigation is completed.
Some people may argue that the students have freedom of speech when it comes
to Facebook postings, or even for waving the Confederate flags. The district says
that is not the case if those actions are causing a disruption at school.
For example: If an after-school Facebook post indicates that one person will do
harm to another student at school, the district can act and impose a suspension
because the actions could disrupt school.
Marion County Public Schools spokesman Kevin Christian said the flag-waving
students' prime objective was to disrupt school. And for that, they can be
disciplined.
It was a planned, calculated incident, Christian said. They were trying to solicit
a reaction.
One West Port High parent, Erika Boone, has a freshman attending the school.
She had heard rumors of race riots and called the Star-Banner. Once she was
contacted, she said she had since found out that the situation was handled
properly at West Port, but wished she would have known about it.
They should have called all the parents, said Boone, specifically talking about
the district's automated calling system.
The Ocala Police Department issued the female student who threw a punch a
citation in lieu of arrest, Christian said on Friday.
Page 1 of 5
Neil Gillespie
From:
To:
Cc:
Sent:
Attach:
Subject:
9/21/2016
Page 2 of 5
Board ; Boynton, Angelia - School Board ; James, Bobby - School Board ; Ely, Carol - School Board ; Stacy,
Nancy - School Board ; Christian, Kevin - Public Relations ; Eason, Jill - Public Relations
Sent: Friday, September 16, 2016 11:47 AM
Subject: Amended Response to 9/14/16 Florida Public Records Request
Mr. Gillespie,
This email amends the School Districts original response to your Florida Public Records Act (Chapter
119) request sent this morning. The Florida Public Records Act entitles you to inspect and copy "public
records," including all documents, maps, tapes, photographs, films, sound recordings, data processing
software, or other material, made or received pursuant to law or in connection with the official business
of the School District. The law requires you to communicate a clear description of the records that you
are seeking.
Your original request did not appear to communicate a clear description of the records that you are
seeking. However, in the interest of assisting you and to ensure full compliance with the law, the
School District will conduct a further investigation into whether it can locate any public records which
may be related to the Ocala Star-Banner article dated January 29, 2016, titled "Racial incident at West
Port: 3 students face discipline after taunts while waiving Confederate flags."
The Florida Public Records Act does not compel agencies to respond to requests within a specific time
limit, but courts have held that an agency is required to respond within a "reasonable" time to locate
the records and redact exempt portions. The School District shall contact you when its investigation
and review process is complete.
Thank you for your patience and understanding while the School District investigates your request.
Steven E. Lake
9/21/2016
Page 3 of 5
9/21/2016
Page 4 of 5
I have received and reviewed your September 14, 2016, Public Records request which you
emailed to the Public Relations Department. Marion County Public Schools (MCPS) will respond
based on the plain meaning of your requests, and will make no effort to edit or interpret your requests.
RESPONSES TO REQUEST FOR INSPECTION
Request 1:
This is a request for public records for the racial incident at West Port High School
described in the Ocala Star-Banner January 29, 2016, Racial incident at West Port: 3 students face
discipline after taunts while waiving Confederate flags. A PDF copy of the story is attached. The
Ocala Star-Banner quoted District Spokesman Kevin Christian It was a planned, calculated
incident and They were trying to solicit a reaction.
Response to 1:
MCPS does not have public records responsive to your request.
Request 2:
In addition, provide records for canceled school days, and/or students kept home fearing a
race riot.
Response to 2:
MCPS does not have public records responsive to your request.
Sincerely,
Jill Eason-Assistant
Public Relations
Marion County Public Schools
352 671-7555
9/21/2016
Page 5 of 5
incident" and "They were trying to solicit a reaction". In addition, provide records for canceled school
days, and/or students kept home fearing a race riot. Thank you.
Sincerely,
Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Email: neilgillespie@mfi.net
[Florida has a very broad Public Records Law. All correspondence sent to or from this entity is subject to the Public Records Law of Florida. Email
communication may be subject to public and media disclosure upon request. Under Florida Law, e-mail addresses are public records. If you do not
want your e-mail address released in response to a public-records request, do not send electronic mail to this entity. Instead, contact this office by
phone or in writing.]
[Florida has a very broad Public Records Law. All correspondence sent to or from this entity is subject to the Public Records Law of Florida. Email
communication may be subject to public and media disclosure upon request. Under Florida Law, e-mail addresses are public records. If you do not
want your e-mail address released in response to a public-records request, do not send electronic mail to this entity. Instead, contact this office by
phone or in writing.]
9/21/2016
Text of email response from Kevin Christian Monday, September 19, 2016
Mr. Gillespie, thank you for your follow-up response. As Mr. Lake previously shared, Florida
State Statute 119.07 dictates requests for public records shall be permitted at any reasonable
time, under reasonable conditions, and under supervision by the custodian of the public records.
In our district, we strive to provide records as quickly as possible, normally 3-5 business days
after the request is received, depending on the scope and depth of the request. Im sorry you feel
we did not respond your request quickly.
If your request stands without clarification, Marion County Public Schools has no records that
meet your requests. You request is vague at best and requires clarity. However, in the interest of
the event you reference and in the spirit of cooperation, particular to your Request 1, any records
that do exist are student discipline records exempted by Florida State Statutes 119, 1002.221 and
FERPA due to student privacy. Particular to your Request 2, there were no canceled school
days, and student attendance reports are not categorized by reason of absence.
If you wish to clarify your requests, we are happy to accommodate and meet them as allowed
under current law.
Many thanks.
Kevin
Kevin Christian, APR, CPRC
Public Relations Officer / Coordinator of Multimedia Productions
Marion County Public Schools
P: 352.671.7555
F: 352.671.7735
http://www.marionschools.net/
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Comment
Lawyers are subject to discipline when they violate or attempt to violate the Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of another, as when they request or instruct an agent to do so on the lawyer's
behalf. Subdivision (a), however, does not prohibit a lawyer from advising a client concerning action the client is legally entitled to
take, provided that the client is not used to indirectly violate the Rules of Professional Conduct.
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful
failure to file an income tax return. However, some kinds of offense carry no such implication. Traditionally, the distinction was
drawn in terms of offenses involving "moral turpitude." That concept can be construed to include offenses concerning some matters
of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law.
Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for
offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust,
or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor
significance when considered separately, can indicate indifference to legal obligation.
A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The
provisions of rule 4-1.2(d) concerning a good faith challenge to the validity, scope, meaning, or application of the law apply to
challenges of legal regulation of the practice of law.
Subdivision (c) recognizes instances where lawyers in criminal law enforcement agencies or regulatory agencies advise others about
or supervise others in undercover investigations, and provides an exception to allow the activity without the lawyer engaging in
professional misconduct. The exception acknowledges current, acceptable practice of these agencies. Although the exception
appears in this rule, it is also applicable to rules 4-4.1 and 4-4.3. However, nothing in the rule allows the lawyer to engage in such
conduct if otherwise prohibited by law or rule.
Subdivision (d) of this rule proscribes conduct that is prejudicial to the administration of justice. Such proscription includes the
prohibition against discriminatory conduct committed by a lawyer while performing duties in connection with the practice of law.
The proscription extends to any characteristic or status that is not relevant to the proof of any legal or factual issue in dispute. Such
conduct, when directed towards litigants, jurors, witnesses, court personnel, or other lawyers, whether based on race, ethnicity,
gender, religion, national origin, disability, marital status, sexual orientation, age, socioeconomic status, employment, physical
http://www.floridabar.org/divexe/rrtfb.nsf/FV/0B6C8E5CDCA464D685257172004B0FBD
characteristic, or any other basis, subverts the administration of justice and undermines the public's confidence in our system of
justice, as well as notions of equality. This subdivision does not prohibit a lawyer from representing a client as may be permitted by
applicable law, such as, by way of example, representing a client accused of committing discriminatory conduct.
Lawyers holding public office assume legal responsibilities going beyond those of other citizens. A lawyer's abuse of public office
can suggest an inability to fulfill the professional role of attorney. The same is true of abuse of positions of private trust such as
trustee, executor, administrator, guardian, or agent and officer, director, or manager of a corporation or other organization.
A lawyer's obligation to respond to an inquiry by a disciplinary agency is stated in subdivision (g) of this rule and subdivision (h)(2)
of rule 3-7.6. While response is mandatory, the lawyer may deny the charges or assert any available privilege or immunity or
interpose any disability that prevents disclosure of a certain matter. A response containing a proper invocation thereof is sufficient
under the Rules Regulating The Florida Bar. This obligation is necessary to ensure the proper and efficient operation of the
disciplinary system.
Subdivision (h) of this rule was added to make consistent the treatment of attorneys who fail to pay child support with the treatment
of other professionals who fail to pay child support, in accordance with the provisions of section 61.13015, Florida Statutes. That
section provides for the suspension or denial of a professional license due to delinquent child support payments after all other
available remedies for the collection of child support have been exhausted. Likewise, subdivision (h) of this rule should not be used
as the primary means for collecting child support, but should be used only after all other available remedies for the collection of
child support have been exhausted. Before a grievance may be filed or a grievance procedure initiated under this subdivision, the
court that entered the child support order must first make a finding of willful refusal to pay. The child support obligation at issue
under this rule includes both domestic (Florida) and out-of-state (URESA) child support obligations, as well as arrearages.
Subdivision (i) proscribes exploitation of the client or the lawyer-client relationship by means of commencement of sexual conduct.
The lawyer-client relationship is grounded on mutual trust. A sexual relationship that exploits that trust compromises the lawyerclient relationship. Attorneys have a duty to exercise independent professional judgment on behalf of clients. Engaging in sexual
relationships with clients has the capacity to impair the exercise of that judgment.
Sexual conduct between a lawyer and client violates this rule, regardless of when the sexual conduct began when compared to the
commencement of the lawyer-client relationship, if the sexual conduct exploits the lawyer-client relationship, negatively affects the
client's interest, creates a conflict of interest between the lawyer and client, or negatively affects the exercise of the lawyer's
independent professional judgment in representing the client.
Subdivision (i) creates a presumption that sexual conduct between a lawyer and client exploits or adversely affects the interests of
the client or the lawyer-client relationship if the sexual conduct is entered into after the lawyer-client relationship begins. A lawyer
charged with a violation of this rule may rebut this presumption by a preponderance of the evidence that the sexual conduct did not
exploit the lawyer-client relationship, negatively affect the client's interest, create a conflict of interest between the lawyer and
client, or negatively affect the exercise of the lawyer's independent professional judgment in representing the client.
For purposes of this rule, a "representative of a client" is an agent of the client who supervises, directs, or regularly consults with the
organization's lawyer concerning a client matter or has authority to obligate the organization with respect to the matter, or whose act
or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
[Revised: 02/01/2010]
http://www.abajournal.com/news/article/aba_addresses_destabilizing_loss_of_public_confidence_in_criminal_justice_i
ABA
The ABA and the NAACP Legal Defense and Educational fund have
issued a joint statement addressing the troubling and destabilizing loss of
public confidence in the American criminal justice system.
The statement (https://www.americanbar.org/content/dam/aba/images/abanews
/aba-ldf_statement.pdf) (PDF) notes the recent spate of killings of unarmed
African American men and women at the hands of white law enforcement
officers. While the ABA and the Fund believe that the overwhelming
percentage of police, prosecutors and judges are not racist, explicit bias
remains a real factor in our countryand criminal justice systemand
implicit or unconscious bias affects even those who may believe
themselves to be fair, the statement says.
Image from Shutterstock
(http://www.shutterstock.com).
http://www.abajournal.com/news/article/aba_addresses_destabilizing_loss_of_public_confidence_in_criminal_justice_i
One would have to have been outside of the United States and cut off from media to
be unaware of the recent spate of killings of unarmed African American men and women at
the hands of white law enforcement officers. Several of these killings, like those of Walter
Scott in South Carolina, 12-year-old Tamir Rice in Ohio and Eric Garner in New York, have
been captured by citizen video and viewed nationwide. More recently, the in-custody
death of Freddie Gray sparked days of unrest in Baltimore, which ended only when the
officers (who were of multiple races) were charged by the local prosecutor.
Given the history of implicit and explicit racial bias and discrimination in this
country, there has long been a strained relationship between the African-American
community and law enforcement. But with video cameras and extensive news coverage
bringing images and stories of violent encounters between (mostly white) law enforcement
officers and (almost exclusively African-American and Latino) unarmed individuals into
American homes, it is not surprising that the absence of criminal charges in many of these
cases has caused so many people to doubt the ability of the criminal justice system to treat
individuals fairly, impartially and without regard to their race.
That impression is reinforced by the statistics on race in our criminal justice system.
With approximately 5 percent of the worlds population, the United States has
approximately 25 percent of the worlds jail and prison population. Some two-thirds of
those incarcerated are persons of color. While crime rates may vary by neighborhood and
class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and
incarceration rates are unaffected by attitudes and biases regarding race.
And, to the extent that doubts remain, the U.S. Department of Justices recent
investigation of law enforcement practices in Ferguson, Missouri, should put them to rest.
In Ferguson, the Justice Department found that the dramatically different rates at which
African-American and white individuals in Ferguson were stopped, searched, cited,
arrested and subjected to the use of force could not be explained by chance or differences
in the rates at which African-American and white individuals violated the law. These
disparities can be explained at least in part by taking into account racial bias.
Given these realities, it is not only time for a careful look at what caused the current
crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial
bias in all of its forms from the criminal justice system.
As lawyers, we have a very special role to play. As the Preamble to the American
Bar Association Model Rules of Professional Conduct states,
As a public citizen, a lawyer should seek improvement of the law, access
to the legal system, the administration of justice and the quality of service
rendered by the legal profession. . . . In addition, a lawyer should further
the publics understanding of and confidence in the rule of law and the
justice system because legal institutions in a constitutional democracy
depend on popular participation and support to maintain their authority.
What must we do? The answer lies in making both macro and micro changes in our
criminal justice system.
At the macro level, Congress and state legislatures must look at the vast array of
laws that criminalize behaviors that pose little, if any, danger to society. We have overcriminalized conduct throughout the United States and have come inappropriately to rely
on the criminal justice system to address problems of mental health and poverty. We have
adopted unnecessary zero-tolerance policies in schools that inappropriately require police
officers to take the place of teachers and principals and become behavioral judges. We
need fewer criminal laws, and fewer circumstances in which police, prosecutors and judges
are called upon to deal with social, as opposed to criminal, issues.
July 2015
We must therefore take immediate action at the micro level to begin the process of
rebuilding trust and confidence in the criminal justice system and fulfilling the promise of
equal justice.
Prosecutors play an important and vital role within the criminal justice system and
should be leaders in this effort. We have begun what we anticipate will be a series of
conversations focused on identifying ways in which prosecutors can play a more powerful
role in addressing the problem of racial bias our justice system. Our organizations arranged
an off-the-record discussion that included prosecutors and other participants in the
criminal justice system committed to equal justice. We emerged from our discussion with a
commitment to advancing the reforms listed below. We regard these reforms as necessary
investments that are essential to strengthening public confidence in the rule of law and the
legitimacy of our justice system.
1.
We need better data on the variety of interactions between law enforcement
and citizens. Earlier this year FBI Director James Comey himself a former federal
prosecutor acknowledged that gathering better and more reliable data about encounters
between the police and citizens is the first step to understanding what is really going on in
our communities and our country. Data related to violent encounters is particularly
important. As Director Comey remarked, Its ridiculous that I cant know how many
people were shot by police. Police departments should be encouraged to make and keep
reports on the racial identities of individuals stopped and frisked, arrested, ticketed or
warned for automobile and other infractions. Police departments should report incidents
in which serious or deadly force is used by officers and include the race of the officer(s) and
that of the civilian(s). This will certainly require investment of funds, but that investment
is key to a better future. We cannot understand what we cannot measure, and we cannot
change what we cannot understand.
2. Prosecutors should collect and publicly disclose more data about their work that
can enable the public to obtain a better understanding of the extent to which racial
disparities arise from the exercise of prosecutorial discretion. While this data collection
will also require investment of funds, it is essential to achieving the goal of eliminating
racial bias in the criminal justice system.
3. Prosecutors and police should seek assistance from organizations with expertise
in conducting objective analyses to identify and localize unexplained racial disparities.
These and similar organizations can provide evidence-based analyses and propose
protocols to address any identified racial disparities.
3
July 2015
4. Prosecutors offices, defense counsel and judges should seek expert assistance to
implement training on implicit bias for their employees. An understanding of the science of
implicit bias will pave the way for law enforcement officers, prosecutors and judges to
address it in their individual work. There should also be post-training evaluations to
determine the effectiveness of the training.
5. Prosecutors offices must move quickly, aggressively, unequivocally and yet
deliberately to address misconduct that reflects explicit racial bias. We must make clear
that such conduct is fundamentally incompatible with our shared values and that it has an
outsized impact on the publics perception of the fairness of the system.
6. Prosecutors offices and law enforcement agencies should make efforts to hire and
retain lawyers and officers who live in and reflect the communities they serve. Prosecutors
and police should be encouraged to engage with the community by participating in
community forums, civic group meetings and neighborhood events. Prosecutors offices
should build relationships with African-American and minority communities to improve
their understanding about how and why these communities may view events differently
from prosecutors.
7. There should be a dialogue among all the stakeholders in each jurisdiction about
race and how it affects criminal justice decision-making. In 2004, the ABA Justice Kennedy
Commission recommended the formation of Racial Justice Task Forces which would
consist of representatives of the judiciary, law enforcement and prosecutors, defenders and
defense counsel, probation and parole officers and community organizations to examine
the racial impact that policing priorities and prosecutorial and judicial decisions might
produce and whether alternative approaches that do not produce racial disparities might
be implemented without compromising public safety. There is little cost associated with
the assembly of such task forces, and they can develop solutions that could be applicable to
a variety of jurisdictions provided that the various stakeholders are willing to do the hard
work of talking honestly and candidly about race.
8. As surprising as it might seem, many people do not understand what prosecutors
do. Hence, prosecutors offices, with the help of local and state bar associations, should
seek out opportunities to explain their function and the kinds of decisions they are
routinely called upon to make. Local and state bar associations and other community
organizations should help to educate the public that the decision not to prosecute is often
as important as the decision to prosecute; that prosecutors today should not to be judged
solely by conviction rates but, instead, by the fairness and judgment reflected in their
decisions and by their success in making communities safer for all their members; and that
some of the most innovative alternatives to traditional prosecution and punishment like
diversion and re-entry programs, drug and veteran courts and drug treatment have been
instigated, developed and supported by prosecutors.
9. To ensure accountability, the public should have access to evidence explaining
why grand juries issued no true bills and why prosecutors declined to prosecute police
4
July 2015
officers involved in fatal shootings of unarmed civilians. The release of grand jury
evidence, as in Ferguson, is one way to promote the needed accountability.
10. Accountability can also be promoted by greater use of body and vehicle cameras
to create an actual record of police-citizen encounters. With the proliferation of powerful
firearms in our communities, law enforcement departments reasonably seek equipment
that enable them to protect themselves and their communities when called upon to
confront armed and dangerous individuals seeking to engage in criminal or terrorist acts.
However, while it is appropriate to arm our police and train them in the use of ever-more
powerful weapons, it is equally important to train our law enforcement officers in
techniques designed to de-escalate tense situations, make accurate judgments about when
use of force is essential and properly determine the appropriate amount of force required
in each situation.
11. We must recognize that not every lawyer has the judgment and personal
qualities to be a successful prosecutor, administer justice and be willing to acknowledge
the possibility of implicit bias. Prosecutors who routinely engage in conduct or make
decisions that call into question the fairness or integrity of their offices should be removed
from office if they cannot be trained to meet the high standards expected of public officers.
At the same time, the terms prosecutorial misconduct and police misconduct should be
used with greater care. Even the best prosecutors will make mistakes, much like the best
defense lawyers and judges do. There is good reason to limit the characterization of
misconduct to intentional acts that violate legal or ethical rules.
12. Prosecutors, judges and defense counsel must pay more attention to the
collateral consequences of convictions. In many jurisdictions, after an individual is
convicted of an offense and completes his or her sentence (by serving time, paying a fine or
completing probation or parole), the individual nevertheless faces a life sentence of
disqualification and deprivation of educational, employment, housing and other
opportunities. This runs counter to the interests we all share in rehabilitation of the
offender and positive re-integration into and engagement with the communities in which
they live. In many cases, prosecutions can be structured to limit some of the most
pernicious of these consequences, provided that the lawyers and the courts take the time
and care to examine alternative disposition options. Prosecutors, judges and defense
counsel should join together to urge legislatures and administrative agencies to reconsider
the laws and regulations that impose these collateral consequences and determine whether
they can be modified to provide more opportunities for former offenders without
compromising public safety.
The American criminal justice is unquestionably at a moment of crisis. But there
are many steps we, as members of the bar, can and should take quickly to begin to turn the
ship of justice around and ensure that the system delivers the blind justice that it promises.
If we commit ourselves to confronting and eliminating the racial biases that now exist, we
can restore the much-needed public confidence in our criminal justice system. As Supreme
Court Justice Thurgood Marshall once exhorted in accepting the Liberty Medal Award in
5
July 2015
1992, America can do better. Indeed, America has no choice but to do better.
Both the American Bar Association and the Legal Defense Fund will continue to
convene meetings with prosecutors and other law enforcement groups to support the
reforms we have identified. We also will work to support and advance a robust dialogue
among prosecutors and leaders in the profession about how best to eliminate racial bias
from our justice system.
William C. Hubbard,
President, American Bar Association
Sherrilyn Ifill
President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.
The following individuals participated in the discussion that led to this joint statement:
Sidney Butcher
Assistant States Attorney, Baltimore City State's Attorney's Office
John Chisholm
District Attorney, Milwaukee County
Kay Chopard Cohen
Executive Director, National District Attorneys Association
Angela Davis
Professor of Law, American University Washington College of Law
Mathias H. Heck
Prosecuting Attorney, Montgomery County, OH
Belinda Hill
First Assistant District Attorney, Harris County, TX
David F. Levi
Dean, Duke University School of Law
Myles Lynk
Professor of Law, Arizona State University College of Law
Wayne McKenzie
General Counsel, New York City Department of Probation
John Pfaff
Professor of Law, Fordham University
6
July 2015
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