California Racial Justice Act and Racially Themed Language in Undercover Questioning

"Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs ... and introducing and admitting into evidence a recording from the undercover operation violates [the Act]."

From Tuesday's decision in People v. Ramsey, by Justice Frances Rothschild, joined by Justices Helen Bendix and Gregory Weingart (expurgations in original, as are the unexpurgated slurs):

Rashaud Ramsey appeals the judgment of conviction for murder….

Police arrested Hassan [Ramsey's alleged coconspirator] on November 10, 2022, more than a year after the Ramsey interrogation and almost two years after the shooting. Detectives placed him in a cell with an undercover law enforcement officer and audio-recorded their conversation. The recording was played at trial.

The officer asked Hassan, "Wassup with you? Why you got your head down [B]lack man?" Hassan responded that he was "messed up" and did not know what to do. The officer told Hassan, "Got to keep your head up. Wassup N***a? I've been through some shit. But what the fuck they talking to you about?"

Hassan told the officer that his cousin and his cousin's friend killed a "boy, and shot his brother and his sister." He admitted he was at the scene of the murder but denied participating in it.

The officer said, "So, so you said your peoples was up in the house? So what happened with their shit n***a?" Hassan responded that "[b]asically, what was supposed to go down was a robbery, and a robbery didn't take place." Hassan explained that his cousin and the friend had asked him to participate in a robbery, and Hassan agreed. While in the car Hassan's cousin and the friend talked "some nonsense" about killing someone. Hassan told them it was not worth it, and they did not need to kill anybody. They appeared to agree, but once they got to the crime scene, Hassan's cousin and the friend "bust[ed] in shootin[g]."

The officer asked what Hassan did with the guns. Hassan responded that his cousin and the friend got rid of them. He admitted he had touched one of the guns, and when shots were fired he ran out of the house. Hassan's cousin accidentally shot his friend as they ran away.

The officer asked if "these n***as is like, like, y'all just talking and they said man, let's go hit these n***as [the victims], or what?" Hassan responded they were just talking about what they could do to get money, and believed the victims had jewelry or some money. The officer asked how they got into the house. Hassan responded that they arrived in his cousin's friend's car, entered through an open window on the side of the house into a dark, unoccupied room. His fingerprints might be in the car but would not be in the house because he wore gloves and a mask, which he later discarded….

Ramsey contends for the first time on appeal that admission of Hassan's jailhouse statements violated the California Racial Justice Act of 2020 because the undercover law enforcement officer posing as a cellmate used the word "nigga" a few times in referring to Hassan, his accomplices, including Ramsey, and the victims.

The Racial Justice Act provides that "[t]he state shall not seek or obtain a criminal conviction or seek, obtain, or impose a sentence on the basis of race, ethnicity, or national origin." A violation of the statute occurs where, inter alia, "a law enforcement officer involved in the case … exhibit[s] bias or animus towards the defendant because of the defendant's race, ethnicity, or national origin."

A violation also occurs if, during trial, "the judge, an attorney in the case, a law enforcement officer involved in the case … use[s] racially discriminatory language about the defendant's race … or otherwise exhibit[s] bias or animus towards the defendant because of the defendant's race …. This paragraph does not apply if the person speaking is relating language used by another that is relevant to the case." …

Ramsey contends that conducting an undercover operation targeting an African American inmate by using racial slurs … and introducing and admitting into evidence a recording from the undercover operation violates [the Act].

Here, the context of the undercover officer's use of the word "nigga" shows it was intended to create rapport with Hassan rather than to "explicitly or implicitly appeal[ ] to racial bias." "Nigga is not an unambiguous racial epithet in today's world, especially when used intraracially." (Daniel v. Wayans (Cal. App. 2017).) The term "can be an affectionate greeting, a compliment, or a term of respect." The undercover officer used the word "nigga" with Hassan in a neutral if not friendly sense. {Ramsey assumes the officer was Black, but the record does not reflect his race.} Nothing in the record shows Hassan interpreted the word as a racial insult or statement of racial bias or animus.

Ramsey thus could not have established at trial, and no factfinder reasonably could have found, that the officer used racially discriminatory language within the meaning of the Racial Justice Act or exhibited racial bias or animus toward even Hassan, much less Ramsey.

Noah P. Hill and Thomas C. Hsieh represent the state.

Comments

[John F. Carr]

The case should have been decided by "Ramsey contends for the first time on appeal".

[Zarniwoop]

It could have been, yes, but by deciding the merits the court avoids handing Ramsey an argument on ineffective counsel:

Respondent preliminarily argues Ramsey forfeited this claim by, as Ramsey concedes, failing to object below to Hassan’s statements on the ground of racial bias. Ramsey responds that if we conclude he forfeited this Racial Justice Act claim, his trial attorney rendered ineffective assistance by failing to raise the claim below. We reach neither of these issues because in any event, no law enforcement officer, judge or attorney used racially discriminatory language about Ramsey’s race or otherwise exhibited bias or animus toward him because of his race.

I have no problem with the court’s disposition of the issue.

[Longtobefree]

Stopped reading at "California".

[Jazzizhep]

Cali, “one can use certain words sometimes. Sometimes one can’t use the same words. Depends on context. We decide context.”

Just what I want the govt deciding; the illegality of speech based on context.

[ReaderY]

The State of California is entirely within its rights to explicitly prohibit its own prosecutors from calling black defendants or witnesses “niggers” at trial in a way suggesting this would tend to make them more culpable or less credible.

And the California appellate court here held, very reasonably, that tjat’s basically all the statute does.

Simetimes basing things on context can be completely appropriate. This is one of those times.

[Eugene Volokh]

That's generally right, but beyond that note that this isn't about the "illegality" of words in the sense of whether they can be criminally punished. (Even there context matters, though it's a much more circumscribed context.) Rather, it relates to the use of words in the process of law enforcement and administration of criminal justice. And there of course context has to matter a lot as to what police officers, prosecutors, and others have to do.

That is especially clear in the courtroom, where what lawyers can say (and can ask witnesses about) often depends heavily on context. But it also makes sense when it comes to law enforcement as well. One can certainly debate what rules should govern law enforcement statements to witnesses and others; but pretty much any rules you're going to have will necessarily turn on context.

[David Nieporent]

This case had nothing to do with "the illegality of speech."

[Jazzizhep]

The case didn’t. The appeal did.

The Cali law is so broad the courts deemed it necessary to weigh in on the context of speech.

The court did exactly what I said they did—determine context of speech.

[David Nieporent]

The case didn’t. The appeal did.

No, it didn't. The law is about what the government can say/do as part of a criminal prosecution. It is not about any speech being illegal.

The Cali law is so broad the courts deemed it necessary to weigh in on the context of speech.

No; you have it entirely backwards. The court had to examine the context of the speech because the law isn't broad.

[ReaderY]

It’s like people have been conditioned to immediately foam at the mouth and strongly oppose whatever is being said whenever they hear the word “California.”

[damikesc]

It has been earned honestly.

[Social Justice is neither]

Conditioned by the insane, retarded shit California repeatedly does then foists on others in one way or another.

[MollyGodiva]

Even worse, having a cop pose as an inmate violates the 5th amendment and needs to be banned. Same thing with any jailhouse snitches.

[DodgerBobH]

The Fifth Amendment might prevent the evidence from being used against the speaker, but not necessarily his accomplice.

[Bored Lawyer]

Even worse, having a cop pose as an inmate violates the 5th amendment and needs to be banned. Same thing with any jailhouse snitches.

Your authority for that assertion?

[Scooter]

Molly 'Feelz' it shouldn't be allowed.

[Frank Drackman]

Ah c’mon man! (HT S Joe) you know that Undercova Brutha got Testicles the size of Bowling Balls, and could drill post holes with his (Redacted)
Molly want a (Redacted)??

Frink

[Rossami]

The full text of the 5th Amendment reads:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Where, precisely, in that do you see a prohibition against undercover work?

[JonFrum]

Imagine an NBA player's podcast being played in the courtroom. There's barely a sentence spoken without the brotherly epithet being spoken once. Or twice. Or three times. Or maybe a clip from Dave Chappelle's standup.

[Sarcastr0]

Jealous?

[Frank Drackman]

Of your typical NBA players standard of living? Absolutely

[mulched]

Noah Knigga could not be reached for comment.

[Frank Drackman]

So you mean an Undercover Cop DOESN’T have to tell you he’s undercover if you ask?? Remember the Pot dealers in High Screw-el, say that and that they’d always make you take a hit off their wares since actual Cops couldn’t

Frink

[Archibald Tuttle]

How is that equal protection of the law when a black man says N****a it has different legal status than when a white man says it? Isn't that law blatently racist?