United States v. Jones: A breakdown of the case that changed the use of GPS

January 29, 2012 Leave a Comment

Last week, the United States Supreme Court issued an opinion that will change the way LEOs do business. As always, I encourage you to read the full opinion. Like any opinion from the USSC, United States v. Jones contains many lessons for LEOs. In this post, I will go through the opinion for you, point out the value of appellate court opinions and tell you how to get the most out of every opinion from appellate courts, especially opinions from the USSC! All LEOs, especially trainers and administrators, must learn to read the entire opinion for themselves and apply the full effect of the court’s decision.

First things first. With any opinion, you must determine what the court examined. What was the issue “before the court?” This is critical as appellate courts, and especially the USSC, issue opinions as to narrow issues of law. People often misquote or improperly apply case law because they forget that the decision of every appellate court is limited to the issue before the court. The issue is framed by the facts of the case and the legal question to be resolved.

In United States v. Jones, the issue before the Court was stated as follows: “We decide whether the attachment of a Global Positioning System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.” This is stated at the outset to frame the rest of the opinion. Appellate courts typically work to decide narrow issues of law. As an example, in this case, the Court discussed other questions raised by this case but not presented by the facts of this case. Justice Scalia summarized the unwillingness of the Court to reach decisions on hypothetical cases stating, “We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”

The next part of the opinion is a statements of the facts. This is a critical part of the opinion. The Court spends a great deal of time compiling this statement of facts from the briefs submitted by the lawyers for both sides as well as the “record” of the case. The record consists of everything from the transcript of the trial, the evidence presented at trial, the motions and rulings in the trial court and the opinions of all other appellate courts that ruled on the case. In short, the USSC has before it everything related to the case. From this, the judges and their staff compile a statement of facts.

The statement of facts is critical to LEOs. This allows you to find out what law enforcement procedures or actions were examined by the USSC. You can then look at your own day to day operations and determine how to proceed. For example, based upon this opinion, law enforcement administrators will examine their internal procedures and change policies to conform to the new law of the land as expressed by the highest court in the country.

The next part of the opinion sets out the principles of law the Court finds applicable to the case. For example, in United States v. Jones, the Court set out the principle that a vehicle is an “effect” within the meaning of the Fourth Amendment which states, that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Justice Scalia also explains the history of the Court’s opinions using the analogy of a search to a trespass and the later cases that explain how the reasonable expectation of privacy analysis guided the Court. The Court begins the opinion with this section because the Court must rely on precedent when ruling on a case. In this section, the Court sets out the precedent upon which it relies for this opinion. This part of the opinion is also important for LEOs because you can learn a tremendous amount about past cases and the principles that the Court finds important. At the end of this section, the Court comes to the conclusion or the “holding” in the case. In United States v. Jones, the USSC upheld the decision of the lower appellate court reversing Jones’ conviction.

Next are the concurring and any dissenting opinions. A concurring opinion agrees with the end result of the main opinion but states a different reason or interpretation of the law. A dissenting opinion is authored by a judge who disagrees with the main or “majority” opinion and explains why the judge or judges disagree. Concurring and dissenting opinions hold a great deal of insight about the Court’s reasoning or rationale for deciding the case.  Often, the reasoning of the concurring or dissenting opinion influence the court in future opinions.

So, on to United States v. Jones. The USSC found that the installation of a GPS device constitutes a “search” of an “effect” within the meaning of the Fourth Amendment to the United States Constitution. This is partly based upon a concept that a search is similar to a trespass. If a person would not be permitted to act in a certain manner because those actions would be a trespass to another, then the court considers the action by law enforcement to be a search. The second part of the analysis is that the Fourth Amendment protects people from unreasonable searches. In this case, the Court found that the insertion on a GPS device to the undercarriage of a privately owned vehicle constitutes a search and raises sufficient Fourth Amendment concerns so as to require a search warrant.

Read it, learn from it and practice the principles set out in the opinion. If you act contrary to the rules set out in this opinion, you could expose yourself to liability.

As a LEO, you should embrace every opinion of the USSC. The justices work hard to understand the realities of law enforcement. While it is easy to criticize an opinion, you must recognize that the United States Constitution was drafted by a group of people who were fearful of government. They drafted a document that would establish a government with boundaries that is responsible first and foremost to the people. In that analysis, the Court must err on the side of limiting government intrusions especially when the only effect is requiring LEOs to seek a search warrant.

Stay safe.

Filed under Case Law, Constitutional Law, Education, Legal Update, LEO Litigation, Officer Safety, Politics & Current Affairs, Uncategorized

New Case From The USSC:Search Warrant Required Prior to Application of a GPS device to a vehicle!

January 23, 2012 Leave a Comment

The United States Supreme Court released an opinion today holding that LEOs are required to have a valid search warrant prior to installing a GPS tracking device on a vehicle. Read the opinion here. Look for a post on this case in the near future.

Stay safe.

Filed under Uncategorized

The Political Process: Get Involved & Get Results!

January 21, 2012 Leave a Comment

We all remember the song from Schoolhouse Rock, “I’m just a bill, just a lonely old bill…” (It’s OK to sing…quietly to yourself!) The song was remarkably accurate! Tis the season for legislators to gather under gold domes all over the United States to consider new laws and amendments to existing statutes. So as the lobbyists, special interest groups and everyone else puts in their two cents, I have to ask, “Are you involved in the process?”

There are many ways to get involved. You can suggest legislation to a legislator, speak for or against legislation or simply contact your state legislator asking her to vote for or against a piece of legislation. While this sounds simple, I am amazed at how many LEOs believe their views are ignored. In my experience, nothing could be further from the truth! Legislators want to hear from all constituents. This is especially true of LEOs! Here are some tips to getting involved to maximize your efforts.

First, learn about the process.Type “legislative process in my state” into Google or Yahoo and you will see websites for nearly every state that describes how the process works from start to finish. Like anything else in life, the more you know about the process the more effective you will be!

Second, learn about your legislators! Type “how to find your state legislature” into Google or Yahoo and you will get a list of websites for nearly every state. You can find contact information for your representatives and senators and learn about them as well. It is always helpful to read the bio of a legislator prior to making contact. Remember, they are public servants. Many have served in other capacities. I’ve met several former service members and LEOs at the Georgia Capitol.

Third, find out what legislation is being considered. Every state has a procedure and it is important to track the legislation as it moves from “a lonely old bill” until it becomes a law! Type “bills pending in my state legislature” into a search engine and you will get websites that will allow you to track bills as they pass through the legislative process. This is important information. Each bill will be considered by a committee. The committees have hearings that are open to the public. This is a perfect time for you to go to the legislature to attend the meeting. You can sign up to speak or just show your support by appearing at the meeting. You can also speak directly to the legislators before and after the meeting. Make certain that you appear in civilian clothes, speak in your capacity as a citizen and make statements that are protected by the First Amendment. I will post more about this in the future.

Finally, get your friends, family and fellow LEOs involved! Use Facebook, email, LinkedIn and Twitter to ask them to speak for or against legislation that is important to you. Make no mistake about  the degree to which legislators search social media looking for comments.

Before HR218, I asked a legislator to sponsor a bill to allow LEOs form other states and retired LEOs to carry firearms in Georgia. The law passed without opposition. I am currently following a bill that I asked a legislator to sponsor that would prevent a person who assaults a LEO from receiving First Offender status. Not only is it exciting to watch the process, this is an opportunity for you to make your voice heard!

It is so easy to sit by and get discouraged at the events that occur in your state legislature. However, you can make a difference. Remember that every law, for better or worse, started with an idea put into the form of a bill and introduced by a legislator. Lend your experience, ideas and influence to the process and next year you will see a statute with your fingerprints all over it!

Stay safe.

Filed under Constitutional Law, Due Process, Legal Update, LEO Litigation, Politics & Current Affairs, Social Networking, Uncategorized Tagged with , , , , , , , , , , , , , , ,

Active Shooters, Home Invasions and “Protecting Our Children”

January 8, 2012 11 Comments

What a sad, horrifying and bizarre way to begin 2012. From a media standpoint, there has been a lot of news to cover. A young mother shot and killed an intruder in Oklahoma, LEOs in Brownsville, Texas responded to a report of an armed suspect in a school on lockdown and shot the suspect, and three LEOs were murdered. Through all the commentary, there is a theme: Protecting our children.

The teen mom is being praised for being brave and she was brave. Let’s be honest though. A lot of people in her situation are brave…and deceased. Like many private citizens, she was the victim of a crime and facing an armed attacker. She called 911 to ask for help like millions of other citizens. Fortunately, she still had a right to possess, access and use a firearm to protect herself and her child. While much is being stated in the media about this brave mother who acted to protect her child, would her actions have been less brave if she was an 80 year old widow who lived alone? The media was attracted to this story because of the infant. You can read thousands of such stories at the Armed Citizen page of the NRA website. They have been publishing such stories for decades. However, the critical role of legal firearms ownership was lost on the media.

Ok, so I guess we know what to look for in news stories. People protecting children. Now I understand the rules. If you use deadly force to protect a child, the media and others will celebrate your efforts. Irrespective of their political opinions or beliefs, people will praise your actions. Well, not so fast….

On January 4, 2012, a school administrator in a middle school called 911 to report that a student entered the school with a gun. First, I did say middle school. Second, this tells you that it is highly unlikely that the school had an armed LEO on the property. Parents were surprised that a child was able to get a gun into the school and “thought they had more security.” The responding LEOs formed a team and entered the school that was on lockdown when they arrived. Yes, I said lockdown. The audio from the numerous cellphone calls and recordings is becoming available and it appears there is no dispute that the LEOs ordered the student to drop the weapon numerous times. Then they fired three times. They hit the suspect three times and he died. When it was released that the weapon the student pointed at the officers was a pellet gun, the controversy started.

No other students were injured; none. No officers were injured; none. The only person who was injured was the person who violated state law and numerous regulations and brought a weapon to a school. This only took place after he refused to drop the weapon and pointed it at uniformed LEOs who were giving loud verbal commands while pointing firearms at him. As the chief in charge of the jurisdiction stated, “He pointed the weapon at the officers, at which point the officers that were actively engaged by the suspect fired at least twice.” Kudos to the department for holding a press conference and showing a picture of the gun. However, within 24 hours, the second guessing and criticism began.

The news outlets are carrying stories of people demanding to know why the LEOs shot the suspect three times. The parents are claiming the LEOs used excessive force, the media is demanding to know why the pellet gun was not marked with a red tip, and other the news stories are blaming the pellet gun! The link in the last sentence will take you to a news story with a sub heading announcing, “Air pistol that looks like real gun costs teen his life.” The LEOs acted not only in self-defense but entered the building to protect 700 children, teachers and staff. Why is the notion that they used excessive force being entertained at all? So, now I’m confused. Clearly, it is not about the children?

Time and time again, we’ve seen LEOs criticized for using excessive force when they shoot a person who refuses to drop or points a “non-firearm” at LEOs. Keep in mind that a pellet gun can and will cause a serious injury or death at close range, especially to a child in a middle school. Remember also that the mother in Oklahoma shot an intruder who was armed with a knife! The reason for this insanity, I believe, is a focus on the firearm as the cause of crime and the “evil” to be remedied. Think about it, if the weapon held and pointed by the suspect in Brownsville was a firearm, little if any controversy would have seen the light of day. While you would have the routine clamor from the voice of collective ignorance that believe LEOs should never use deadly force, such stories would have been short-lived.
To prove my point, let’s look at the deaths of LEOs so far this year. Agent Jared Francom with the Ogden PD in Utah was killed while serving a search warrant. Park Ranger Margaret Anderson was shot and killed while attempting to stop a fleeing suspect near the Longmire Ranger Station in Mount Rainier National Park. The killer was a suspect in the shooting of four people just prior to Ranger Anderson’s death. In Puerto Rico, Sergeant Abimael Castro-Berrocales was shot and killed after stopping a speeding vehicle. In each case, there is a media firestorm about the ownership and use of firearms. I will not link to those websites or pages because I do not want to be associated with them, including one that blames Ranger Anderson’s death on a recent change in the law that allows private citizens to carry firearms in parks. Never mind the fact that the suspect fortunately died before he was able to kidnap or attack any other park visitors.
When law enforcement efforts and public policy focus on the “evil” of firearms, there is a cost. Stay at home moms are not able to protect their children. Schools do not have armed resource officers on campus and suspects are more likely to bring weapons to a school. Money and resources that should be spent on salaries and equipment are wasted on programs to “end gun violence” and “reduce gun crimes.” The pinnacle of this misdirected effort is the now infamous “Fast and Furious” program that led to the death of Border Patrol Agent Brian Terry. You can read my comments about this program here. Make no mistake, the groups that want to disarm the public want to disarm LEOs as well. They are the same groups that believe you should not use deadly force.
So what is the take away? What should LEOs make of all this coverage? Well, I believe I was right at the outset. It is all about protecting our children. The children of citizens who call for help, the school kids locked down and hiding under their desks and perhaps most important, the children of the LEOs in our country. Ranger Anderson’s children will never again hug their mother. Those children lost something that cannot be replaced. That is why I am so passionate about convincing LEOs not to be hesitant. From all accounts, Ranger Anderson, Agent Francom and Sergeant Castro-Berrocales did not have a chance to defend themselves and that is an all too common thread in recent shootings of LEOs. Do not let a single news story cause you to hesitate to use the appropriate level of force. The world will have years to debate your actions. You have the rest of your life to make up your mind.
In Graham v. Connor, Justice Rhenquist wrote, “The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” So, while you can expect second guessing by the grossly uninformed, you can find some comfort that the USSC still recognizes the realities of law enforcement. The Court also recognizes your right to own firearms and protect yourself, as a citizen and a LEO. Work hard to protect that right on both fronts as your life, and the lives of your spouses and children, may one day depend upon it.

Stay safe.

Filed under Active Shooters, Use of Tasers, FOP & POST, Politics & Current Affairs, LEO Litigation, Officer Safety, Use of Force, Case Law, Media Relations Tagged with , , , , , , , , , , , , , , , , , , , , , , , ,

Year End Planning For LEOs: More than part-times and naughty lists

December 31, 2011 Leave a Comment

As you “undeck the halls,” defy gravity on ladders taking down lights and plot a strategy to stay off the naughty list next year, I’d like to take a few moments of your time to talk about some end of the year planning that is essential for LEOs. This is not planning the next firearm purchase, although that classifies as essential in my book, as I’ll leave that to other blogs! I’m talking about planning in the career, life and protection sense for you and your family. In short, a bit of wisdom, a word of experience and a pinch of “lawyering up.”

Career Development

Most LEOs wait until September to determine if they require training hours to meet their state requirements. Don’t do that; start now. Take a look at training available from state, regional and commercial sources. This will allow you to plan for classes, save for tuition if necessary and make a case with your chain of command for you to attend each class.

Be deliberate in your training plans. Work toward certificates, designations or specialized classes. Look for classes that allow you to obtain college credit as well. Many training companies now offer college credit as a standard benefit of taking their courses. For example, I took an Active Shooter Instructor Course through Team One Network. The class provided college credits that can be transferred later. The class was excellent by the way.

Finally, is there an area of law enforcement that interests you? If so, learn more about it! It is easier to reach a training goal if the end result lights you up just thinking about it! Do you have in interest in training? Are you interested in becoming the commander of a tactical unit? Are you working to reach command staff levels within your agency or another jurisdiction? The path to those goals is clear. Look at the resumes of those who are in your ideal job and take the classes necessary to get there!

Education

I could have an entire post about the excuses people have for not finishing their degrees. You certainly do not need a college degree, masters, law degree or Ph.D. to be a LEO. However, those initials after your name are required in more and more agencies to advance to the command level. It is increasingly hard to compete for the top spot in any agency without a degree. That is the reality of our profession. There are certainly exceptions to this rule. However, I want to hear that your promotions and career proceeded along a predictable path and not according to luck!

There are plenty of flexible programs available for LEOs who want to obtain or finish a degree. Do not overlook the traditional universities. For example, Kennesaw State University just north of Atlanta has a fantastic and flexible BS degree in Criminal Justice taught by LEOs, former LEOs and some of the best instructors the CJ field has to offer! The university also has a Masters Program in Criminal Justice. The classes are taught on weekends to assist with scheduling and the faculty is committed to your success!

There are also flexible programs, some offer on-line options, throughout the United States! The Fraternal Order of Police offers members the Fraternal Order of Police University or FOPU. The program currently offers a partnership with nine universities and colleges to provide members with assistance with scholarships, tuition and tailoring the courses to fit your needs.

In short, leave the excuses to the suspects on the street and in the interview rooms! Make it happen for yourself and your family in 2012!

Wills and other important papers

The new year is a great time to assess your personal situation with regard to your will and who will make decisions if you are not able to do so. Let’s face it, the new year brings marriage to many and divorce to others. If your circumstances have changed, “for better or for worse”, you must update your will, “living will”, and insurance beneficiary information.

I have personally been involved in many situations wherein a person did not change the beneficiary of their life insurance or department benefits and an ex-spouse collected death benefits. Don’t blame the department or the insurance company. They can only do what you tell them to do!

If you get married, divorced, have a child or adopt a child, you should have an attorney give your will a second look. If you do not have a will, we need to talk…and you need to read my previous post on this topic! For those of you who choose not to use an attorney to draft your will, that is your choice. However, remember that you will not be saddled with any defects in your will. The people you are trying to protect with the will are left to deal with those issues. If it makes you feel any better, I hired a lawyer to draft my will. Enough said.

If you are not able to make medical decisions for yourself or are not likely to survive, you are able to provide direction and designate who will make those decisions. While the names of the documents may vary, the goal is the same. Speak with an attorney in your state to find out more. Through my representation of hospitals for many years, I have seen the effects of a family working without direction from the ill or injured party in these situations. This can be a difficult and devastating time that can be made much easier with some advanced planning.

Many lawyers will offer discounts to LEOs for these services. Your local FOP lodge probably has an arrangement with a local attorney. The costs are minimal compared to the peace of mind and other benefits.

Insurance

There are three types of insurance your should address, update or consider this time of year. They are auto, life and legal defense. While there are certainly other types of insurance like disability and long-term care, we will save those for another blog post!

Automobile insurance is your best friend if you are injured because you stand the best chance of injury in a motor vehicle collision! I do not need to spend time convincing you of the crazy driving habits of the motoring public or of the grossly underinsured nature of the majority of the amateur stunt drivers on our roads! Your UM coverage on your personal car insurance policy will often help you if you are injured on duty. Yes, I said ON DUTY! Also keep in mind that your travel to and from work in your personal vehicle is normally NOT covered by workers compensation, so you will be on your own if you are injured driving to work by a driver with little or no insurance! You should pay the extra premiums to increase your UM policy limits as high as you can afford. For more information, see my previous blog post on this topic.

Life insurance is another matter. Your department likely has a death benefit as well as the state, federal and local government if you are killed in the line of duty as does the National Rifle Association. In addition, the Fraternal Order of Police has a death benefit for members. As stated above, update the beneficiaries as necessary!

Finally, let’s talk about legal defense. I recently defended a LEO accused of murder….yes murder, when the family of the perpetrator attempted to seek a warrant for his arrest. He was not an FOP member and did not have a legal defense plan. His fee, even with a LEO discount, was a significant percentage of his annual salary! A few years ago, a LEO was finally acquitted of criminal charges following a shooting. His legal defense bill was $100,000.00! I do a great deal of pro bono work for LEOs every year as do other attorneys around the United States. However, you should not rely on this option as it may not be available when you need it! The Fraternal Order of Police offers a legal defense plan that will protect you in the event of administrative, tort or criminal charges. It will also protect you in the event that you face liability for carrying a firearm pursuant to HR 218. The National Rifle Association offers insurance for LEOs who teach firearms classes. Do not wait until you have a problem to look for insurance. Most plans will not cover an issue that arises prior to your purchase of the insurance.

Remember to read your insurance policies! While you may believe it is a sure cure for insomnia, it is best to read it now. If the policy does not cover you for a particular situation, you can change that now. If you wait until after an incident and discover for the first time that the policy will not protect you and your family, insomnia will be least of your worries!

Looking forward to the future!

All predictions of the Mayan calendar aside, 2012 will hopefully be a great year for all of us! At the end of the new year, I hope to hear from you about your successes! Contact me if I can help you in any way. We are proud to stand for and with LEOs when they are injured and need assistance. I can help you find an attorney virtually anywhere in the United States.You should never stand alone.

May 2012 be safer for all of us and may God continue to protect each and every one of you!

Stay safe.

 

 

Filed under Education, FOP & POST, LEO Litigation, Uncategorized, Use of Force, Use of Tasers

Support Comes In All Forms…

December 11, 2011 1 Comment

It is easy as LEOs to focus on the bad moments in a day. For some reason, those moments are more memorable for LEOs including bad wrecks, domestic disputes and simple nonsense that makes you wonder sometimes if Darwin was completely wrong! However, there are moments that also give us faith and strength as well as support. A kind word from a stranger, a thank you note sent to the chief or some other small gesture that reaffirms our commitment and confirms that the time spent in the cold and rain is appreciated.

This past weekend, I was honored to enjoy another pheasant hunt with friends and clients from six states at the Mountain View Plantation in Delta, Alabama. This marks the eleventh year we gathered to exchange stories, catch up and form new friendships. The hunters represented many professions. We had lawyers, bankers, accountants, pharmacists, financial advisors, retired LEOs, professors, students, vehicle restorers, physicians, IT professionals and others. Many attendees were retired military and most served our country in the armed forces or law enforcement. We all have many things in common including our love for the outdoors and hunting and a commitment to service before self.

This year, I added a mission to our hunt. This summer, I met the founders of Hunting For Heroes at the Biennial Conference for the Fraternal Order of Police in Salt Lake City. This non-profit takes disabled LEOs hunting. They support the LEOs and their families as they transition to a life they never imagined. H4H, as they are also known, is committed to using any method necessary from specialized wheelchairs to modified weapons in order to get these LEOs into the woods to fish and hunt. From dove to turkey to trophy bucks, the game may change, but the mission is the same. They make certain these LEOs never feel alone or confined to their homes. Many of these LEOs have never hunted before and H4H opens up a new world of recreation and enjoyment for them and their families.

This year, I told the  hunters about H4H. We held a raffle for a shotgun and brought the president of H4H to our hunt. Through the raffle tickets and the donations we raised over $3000.00 for H4H! Perhaps in a bit of mojo, the winner of the raffle is a retired Leo.

For all the hunters who attended, please accept my heartfelt thanks for all your support in all forms.

 

 

 

 

 

As you go through this 2011 holiday season, remember that you have the support of so many citizens who understand and appreciate what you do every day for all of us. Remember that there are groups out there like H4H who stand with you when you and your family need support. Sometimes a “thank you” to a LEO when they walk by in uniform is enough. When it is not enough, there are people like the hunters I was honored to see this weekend and the folks at H4H who will take “thank you” to a whole new level.

Stay safe.

Filed under Keeping it light, Media Relations, Politics & Current Affairs, Social Networking Tagged with , , , , , , ,

TASER® Class: Use of Force, Risk Management and Legal Strategies Seminars

December 3, 2011 Leave a Comment

After 23 years in law enforcement, I’ve attended a bunch of classes. I’ve also taught a bunch of classes relating to everything from basic law enforcement to on-scene response to the Georgia Association of Law Enforcement Firearms Instructors. I was honored to attend a great seminar recently put on by TASER® International in Lawrenceville, Georgia. The class was open to LEOs, administrators and attorneys. With attendance of about 250, there is no doubt the class was popular and the topic appropriate.

As I walked around during the breaks, I saw a cross-section of our law enforcement community, many of whom I knew. I ran into LEO trainers, line officers looking to learn more, agency heads, county attorneys and members of our United States Military. What a great collection of leaders.

The seminar was excellent. The topics were fresh and timely ranging from use of force decisions from courts around the country to product innovations from TASER® to a healthy dose of science and medicine to educate attendees on the device. Having defended LEOs as well as physicians in medical malpractice cases for many years, I was impressed with the way in which the material cut to the chase and presented the facts.

The seminar instructors included TASER® CEO and Founder Rick Smith,TASER® General Counsel Mike Brave, Dr. Mark W. Kroll, PhD, FACC, FHRS who holds numerous patents associated with implemented cardiac pacemakers and a LEO who also works as an emergency department physician.

The TASER® device has saved lives and greatly reduced injuries for LEOs and suspects. The seminar stressed an analysis that bears some reflection. How many lives were saved because the TASER® was deployed and the use of deadly force was not required? That is a penetrating question. It is also the most important question that you must bring to the community and your administration when promoting TASER® use and analyzing TASER® deployments.

LEOs in the United States are well-trained and have a great deal of guidance from our courts on the use of force. As I’ve stated in previous posts, the ideal law enforcement encounter with a violent offender ends with no injury to the LEO or the offender. If that goal cannot be accomplished, we should strive to effect the arrest with the least amount of injury as well as using the least amount of force. Time and time again, we have seen that the TASER® accomplishes that goal and is an invaluable tool for LEOs.

As to those who seek to demonize the TASER®, an essential part of any tort lawsuit that seeks damages for an injury to a person is causation. In short, “Did the actions of a person cause the injury?” I’ve dealt with this in defending physicians and hospitals for many years. As LEOs you must always remember that the outcome of the subject’s encounter with LEOs does not create liability. Put another way, the person suing the LEO or the agency must prove that your actions actually caused the injury outlined in the lawsuit. The law requires proof of proximate cause also expressed as legal cause. More than anything, this seminar was effective in outlining great strategies to prepare LEOs to defend themselves in cases wherein the outcome of the arrest is a serious injury or death. In order to defend yourself in a lawsuit, like in any use of force case, you must gather the appropriate evidence.

The seminar presented common sense points seemingly lost in the media. For example, any pacemaker must be able to withstand the electricity transferred by a medical external defibrillator and the TASER® device delivers far less energy. Or the fact that the TASER® is powered by a battery the size of a digital camera battery and cannot deliver the same current as an electric chair. Yes, I’ve heard that argument made with a straight face but I could not stop laughing. The import of the seminar is that as LEOs we bear the burden to get the facts to the community and the media. The TASER® is a tool provided to us by a private company willing to take a risk. Just as the folks at TASER® protect you on the street, you must protect them in the courtroom, before the city council and with the media. Just like any law enforcement tool, one court case can change the game and result in the loss of a vital arrow in our quiver.

Like any law enforcement tool, you must be educated and be able to articulate the use of and reason for deployment of a TASER®. I recommend that you periodically read the training materials you received and review that material before you testify in EVERY case if a TASER® was deployed. Remember that the testimony you provide in every probable cause hearing or trial in municipal court for disorderly conduct is just as critical as your testimony in federal court in a use of force case. You should be just as fluent in the science of the TASER® as you are with the science behind your firearm. In the end, all of the research done on the TASER® and all of the expert testimony provided in every case will not determine if we are able to keep this valuable tool. It will be the actions of LEOs on the street and the manner in which they are able to articulate the reasons for their actions that will carry the day. That’s OK though. You are the best in the world at what you do.

Stay safe.

 

Filed under Case Law, Education, Legal Update, LEO Litigation, Officer Safety, Politics & Current Affairs, Uncategorized, Use of Force, Use of Tasers

May It Please The Court… The United States Supreme Court

November 27, 2011 2 Comments

Each court has a listing of the attorneys who are permitted to practice in that court. In many instances, an attorney’s licensure in a particular state permits appearance in all trial level courts within that state. However, state appellate courts usually require attorneys to apply for permission to appear before that court. When this occurs, the lawyer is “admitted to the bar” of that court. The same is true of all federal courts. For instance, after I became an attorney in 1999, I applied for and was admitted to the Georgia Court of Appeals, the Georgia Supreme Court, the United States District Court for the Northern District of Georgia and the United States Eleventh Circuit Court of Appeals. While an attorney can submit paperwork requesting admission to these courts, I took great efforts to appear personally to be sworn into the bar of each court whenever possible. I recall each event with great pride and respect for the traditions of each court knowing how many attorneys appeared there before me and how many will follow.

On October 31, 2011, I was honored and humbled to be admitted to the bar of the United States Supreme Court. I traveled to Washington, D.C. with my wife, Barbara. the day before. We took in some sights, walked the mall and visited the WWII and Law Enforcement memorials. Sunday evening, we enjoyed dinner with several members of the Cobb County Bar Association and their families who also made the trip. On Monday morning, we entered the United States Supreme Court and met for breakfast in the cafeteria. The building is made completely of marble and it is beautiful! All around the building are reminders of the history of our country and the role the Court played in shaping our country.

Carrying on the proud traditions of the Court, I took the oath and was sworn in as Justice Roberts began the day. I stood beside other attorneys, including several members of the United States Coast Guard, as the clerk of Court administered the oath. We then received a warm welcome from Justice Roberts. True to tradition, the Court immediately began oral argument on the two cases on the docket for that day.

The oral argument, in both cases, centered upon the question of whether or not a person convicted of a crime is entitled to the sentence offered in plea negotiations prior to trial. The oral argument was passionate and the questions from the justices were predictably pointed. It was interesting to note that the justices sit at nearly eye level with the attorneys.

As I left the Court with Barbara, I thought of all of the decisions signed by the justices of the United States Supreme Court and how those decisions shape our lives as LEOs. Time and time again, the justices of the United States Supreme Court respect the reality of law enforcement in their decisions. From use of force to issues of officer safety, I am always impressed by the balance struck by the Court. When you read about an opinion of the USSC, never take someone’s opinion of what the Court said or the rule of law expressed in the opinion. Read the case. You can find the opinions here.Those opinions are filled with history and the rationale of the Court and provide guidance for all LEOs.

When I appeared to be sworn in, I carried with me a pen given to me by two friends when I graduated law school, my LEO ID and my retired LEO identification card. I also wore a blueline lapel pin. In a small way, I wanted to stand for the LEOs who make the cases that come to the USSC. Never forget it is the LEO on the street who takes the risks, solves the crime, makes the arrest and testifies in court. It is the LEO who trusts the Justices of the United States Supreme Court to balance the rights provided in the United States Constitution against the realities of law enforcement in the United States. As you begin your next shift, you can be certain the Justices of the United States Supreme Court ensure that you as LEOs will receive “Equal Justice Under Law.”

I would like to extend a special note of appreciation to the men and women of the United States Supreme Court Police for their courtesy and professionalism handling a near impossible task of providing safe access to one of the most prominent buildings in the world.

Stay safe.

Filed under Case Law, Constitutional Law, Due Process, Education, LEO Litigation, Politics & Current Affairs, Uncategorized Tagged with , , , , , , , , , , ,

Public Safety Appreciation Week: A moment to pause and reflect

October 10, 2011 Leave a Comment

This week in Cobb County, Georgia, the Chamber of Commerce kicked off the 13th Annual Public Safety Appreciation Week. I stood as a proud sponsor for that event. I was also asked to speak at the 3rd Annual Paulding County Public Safety and Family Appreciation Festival on Saturday October 8, 2011. These events are amazing opportunities for the public to meet the people who protect them day and night. I would like to share the text of the speech I gave on Saturday. The words are from the heart and apply to all of our public safety heroes in every city, county and state in our country. Stay safe.

         I want to thank everyone for giving me the honor of speaking to you today. It is truly comforting to be in the presence of so many public safety professionals. We are here today for you just as you are all here for us, every day. Day and night, bitter cold or August heat, you answer the call of duty for strangers.

         In January 2008, I started a law firm dedicated to helping public safety personnel. My team looks out for you when you need protection, we advocate for you when your rights are threatened and we help you when you are injured on and off duty. We are committed to you because of who you are and what you do.

         Public safety. That is quite an interesting choice of words to describe EMS, fire and law enforcement officers. What are we to expect of “public safety” officials? Are they expected to prevent crime? Are they expected to eradicate fire risks? Are they expected to prevent anyone from choking? The United States Supreme Court in Deshaney v. Winnebago held that government officials are not insurers of public safety. However, public safety officials make the effort to educate and train the public to prevent the tragedies that are so devastating to our “public safety.”

         So if the law does not require these efforts, why do it? Why exert resources reaching out to the public you serve? If the law allows the fire department to stay in the station and wait for the next fire why teach fire prevention to school children? If the law allows EMS to wait to respond to the next person down, why teach CPR and first aid? If the law allows law enforcement officers to show up as soon as possible and investigate crime scenes, why work with businesses and schools to develop plans to keep adults and children safe? The answer is simple: you work to protect the public any way you can because you are driven to do so. Driven by a deep-seated belief that this is your community and the citizens of Paulding County deserve the best you have. You believe they deserve your “A game”; every shift, every day. For that, your community is truly grateful.  

         As certain as the sun comes up tomorrow, the people of Paulding County will live their lives and go about their business. They will go to church, school and work. They will return each evening and rest comfortably in their beds secure in their belief that when their lives turn upside down, when their children are in danger, when their safety is threatened by those who wish them harm, you will respond. You will respond quickly and bring to bear the skills and dedication you carry with you. We are here today because we understand that skill and dedication is only part of the equation. For in the heart of every one of you is a commitment to service above self that drives you to perform your assigned duties with honor and courage, even when in doing so you put your life on the line.

        Enjoy your day. Accept the well wishes of those in attendance today. Take a deep breath and take in the gratitude and community support you see all around you. Know that each and every day, as you fulfill your sworn duties, you are not alone. Behind you are the men, women and children of Paulding County. Look around you and you will know, without hesitation, that while you have their backs, they have yours.

         Thank you for inviting me here today. May God embrace each of you in His protective arms and keep you safe today and every day.

Filed under Media Relations, Politics & Current Affairs, Social Networking Tagged with , , , , , ,

If you tell them, they will know….”You’re Under Arrest!”

October 1, 2011 Leave a Comment

Over the past 20 years, defensive tactics have come a long way. Incorporating real world statistics and video footage of attacks on LEOs, instructors have changed the way LEOs respond to threats. Encouraging LEOs to close the gap to control a physical confrontation, recognizing that every confrontation is an armed confrontation due to the high number of LEOs who are disarmed and using an appropriate level of force immediately are all techniques that have kept LEOs safe and prevented many situations from escalating.

As part of this trend, instructors have taught LEOs to give verbal commands during physical confrontations. The goal is to make it clear to the suspect exactly what you want them to do. This also has the effect of helping to coordinate the efforts of several LEOs as they work together to secure a suspect without unnecessary injury. From high risk traffic stops to passively resisting suspects during misdemeanor arrests, communicating with the suspect has become a common occurrence in law enforcement.”Stop resisting,” “Give me your hand” and “Turn on your stomach” are commands that communicate exactly what is expected of a suspect.

As we all know, there is another benefit to giving loud verbal commands and instructions. If the encounter is observed by witnesses or recorded on video, observers will be able to relate that the LEOs were being professional and continuing to make it clear to the suspect exactly what was expected of him. I would like to suggest that LEOs add another phrase to their training, “You’re under arrest!”

In any situation, initial or continued resistance constitutes a criminal act. By communicating to the suspect that he is under arrest, he can no longer justify resisting on the grounds that he was not aware that the LEOs were in fact officers. Further, resistance after being advised he is under arrest will justifiably lead to further charges.

In my experience, the public, namely jurors, will support a LEO who is effecting an arrest. However, in many of the videos I see, LEOs do not tell the suspect he is under arrest. This is especially true when the LEO is attacked. This can lead to allegations that the suspect was confused about what was happening. So, make it clear and tell the suspect, “You’re under arrest!”

The last step is to properly document the events in your incident report. Document that you told the suspect he was under arrest as well as the probable cause for the charges such as simple battery, obstruction of a LEO, assault, etc. Make it clear to anyone reviewing your actions that the suspect was not only told to comply and what you wanted him to do, he was also told that he was under arrest early in the confrontation. This will also make for powerful testimony at trial.

I remember when our county jail installed a huge sign in the intake area. It simply said, “You are in jail.” While this should not have been a revelation to any suspect after being told he was under arrest and taking a ride in the back of a patrol car while wearing handcuffs, some folks were genuinely surprised to learn this was the intended destination all along. Go figure. Perhaps they thought we were heading to the ball game.

Stay safe.

Filed under LEO Litigation, Officer Safety, Use of Force Tagged with , , , , , , , , , , ,

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