Wills Are For Rich Folks….and LEOs!

March 20, 2011 Leave a comment

If you’ve ever sat in one of my classes, you know that I always speak to LEOs about getting a will. I raise this issue no matter what class I am teaching because the topic is too important. I also tell my classes that I do not draft wills. I have a group of lawyers who help the LEOs that I send to them.

I often hear LEOs say that they do not have any money, so they do not need a will. I could not disagree more. First, if you are killed in the line of duty, your survivors will receive a considerable amount of money from several sources. Second, a will is your opportunity to give guidance to those who survive you. If you have ever lost someone close to you, you know that a will can be a comfort to your loved ones.

Your estate consists of all of the things you own at the time of your death. If you do not have a will, your estate be handled according to state law. Your property will be divided and a court will appoint someone to manage that process. The person who manages your estate also has the ability to bring suits on behalf of your estate. That means if someone is responsible for your death, your estate has the right to bring a suit against them. This could be an individual, a motorist or a company regarding any sort of product liability.

When you draft a will, you should also consider guardianship for your minor children and an advanced directive or similar document that allows someone to make medical decisions on your behalf. Finally, you can set up one or more trusts for your children. If you think there will not be any money to fund those trusts, think again.

A line of duty death has the potential to bring compensation from several sources. Most departments provide a death benefit and most FOP lodges do the same along with the Grand Lodge of the Fraternal Order of Police. If you are an NRA member, there is a $25,000 benefit and other funds available for scholarships for the dependents of fallen LEOs. The United States Department of Justice also has benefit programs for line of duty deaths and severe disabilities and many states have similar programs. Concerns of Police Survivors or COPS, has a list of resources available to survivors.

I am asked all the time if you should write your own will. In my humble opinion, that is like using a “neurosurgery at home” kit. You can save a lot of money, but good luck fixing your mistakes! I hired a lawyer to draft wills for my wife and me because it was too important and I do not write wills everyday. I’m certain that there are lawyers in your communities willing to provide reduced will related services for LEOs in your community. All you need to do is ask.

Make certain a trusted friend or two has a copy of the will to make things easier and let other friends and relatives know where they can find a copy. Your survivors will have a lot on their shoulders. These small steps will help them.

I know you feel the same way about needing a will as I do in one respect. The Grim Reaper better not bring a sickle to a gunfight ’cause I am not going anywhere without a fight! However, there is no denying that we will all leave this earth at some time. Far from being a way to divide a fortune, a will helps your survivors through the most devastating time in their lives.

Something to think about. Stay safe.

Filed under Case Law, Education, Legal Update Tagged with , , , , , , , ,

The LEO’s role as a crime victim

March 12, 2011 Leave a comment

About 7 years after I started working as a LEO, I was summoned jury duty. The questionnaire I received required me to disclose, under oath, if I was ever a victim of a crime and to list those crimes. I thought for a minute, checked the box for “yes” and started writing. As part of my constant efforts to be accommodating, I listed the number of “counts” next to each statute. As you may imagine, there were several counts of simple assault and simple battery, more than one count of terroristic threats, a couple of counts of “solicitation of sodomy” based upon requests by several angry suspects (all of which I declined) and at least one count of aggravated assault. When we handed our forms to the jury coordinator, she read the list of crimes and said, “Wow! That’s a lot.” I knew at the time that my list was nowhere near as long as other LEOs I knew.

Every couple of weeks, I receive a call or email from a LEO who is concerned about the disposition of criminal charges against a particular suspect. While many of those calls involve the LEO’s attempt to protect children or a particularly vulnerable victim, many others involve crimes committed against the LEO in the performance of his duties. I am always disappointed to hear how many LEOs are concerned that the prosecutors will allow a suspect to plea to lesser charges when the assault or injury occurs to a LEO. However, I understand their concerns because I have seen it happen.

There are several ways that you can prevent a suspect from getting a light plea deal when that suspect commits a crime against you. First, develop a good relationship with the prosecutors in your jurisdiction. The overwhelming majority support you and want to learn more about your job. Second, make certain that your report clearly outlines the details of any crime committed against you. It is not enough to say that the suspect struck you. Add that the suspect struck you in the upper chest just to the left of your badge or kicked your upper leg leaving a mark on your uniform pants. Third, you need to learn to be a victim.

Victims have some rights. As a victim, you have the right to contact the prosecutor, meet with the prosecutor and give input to the charges. You also have the right to know the status of the prosecution and any deals that will be discussed with the defendant or his counsel. While the prosecutor generally has the discretion to offer and accept plea deals, you have the right to make your views known. Finally, you have the right to attend the plea proceeding. You will find that most judges want to hear from a victim at the time of the plea who cares enough to come to the courthouse.

By letting the prosecutor know that you are interested in the case and by providing photographs, invoices for damaged personal or department equipment and medical records documenting your injuries, you help the prosecutor learn more about the case. You also help personalize your case. Most prosecutors are swamped with case files. Make it easy for them to learn the facts about your case. If you meet a prosecutor who is not willing to listen, remember that the elected official at the top of that chain of command will listen.

There are many resources available for LEOs injured in the line of duty. I will write about them in a later post. However, we are working in Georgia to pass a law to prevent anyone who commits a forcible felony against or injures a LEO from receiving First Offender status. You can read the bill and follow the progress in the Georgia legislature here. Consider similar legislation in your state. I drafted and submitted this bill after working with LEOs who were injured, some severely, only to find that the perpetrator was given First Offender status.

In our society, we rely on law enforcement to protect us. When a suspect assaults, attacks or injures a LEO, he or she has just faced the highest level of force our constitution will allow us to use to stop crime. The actions of that suspect should be treated differently. In an age of hate crimes legislation, I can easily make the argument that a crime against a LEO is a hate crime with implications that the malice is directed toward society as a whole. However, that would me too much philosophy for one blog post!

Stay safe.

 

Filed under Education, Keeping it light, Use of Force Tagged with , , , , , , , , , , ,

Freedom of Speech After Snyder v. Phelps: A Lesson for LEOs

March 6, 2011 1 Comment

The news, in every form, has been buzzing this past week about the United States Supreme Court’s opinion in Snyder v. Phelps. This is the case involving protests by a church at the funerals of United States service members. Although the media did not focus on this issue, this church also protested at the funerals of firefighters and LEOs. You can read the full opinion here and, as always, I encourage you to do so. The opinion contains a summary known as a syllabus. However, you should take the time to read the entire opinion. Opinions from the United States Supreme Court on the First Amendment are relatively rare. Therefore, you will likely learn a lot from the opinion as the Court reviews past cases in light of the facts of this case. Part of that discussion relates to the First Amendment protection afforded matters of public concern. That is a critical analysis for LEOs.

First, let’s discuss the opinion from the United States Supreme Court. As you probably guessed, the news stories missed several key facts concerning both the reasoning and basis of the Court’s decision. I have come to expect this as court opinions do not lend themselves to sound bites. This is especially true of the opinions from the United States Supreme Court. As an example, read the Court’s opinion in Columbia v. Heller regarding Second Amendment rights. I know many of you are familiar with that opinion.

The Court’s opinion in Snyder was not focused upon the vile statements made by the protesters. In fact, it appears that the protesters did not dispute that the statements were offensive. While this was a critical reason for the $10,900,000 jury verdict, the Fourth Circuit Court of Appeals was focused upon whether or not the statements, however vile, were protected by the First Amendment. Like the Fourth Circuit, the USSC was required to analyze the specific facts surrounding the protest. I found some of those facts surprising.

  • The protest took place approximately 1,000 feet from the church where the funeral was held.
  • The protesters have publicized the same message for 20 years.
  • The protesters have picketed nearly 600 funerals.
  • Several buildings separated the picket site from the church.
  • The picketers displayed their signs for about 30 minutes before the funeral began and sang hymns and recited Bible verses.
  • None of the picketers entered church property or went to the cemetery.
  • The picketers did not yell or use profanity, and there was no violence associated with the picketing.
  • Church members had the right to be where they were.
  • Westboro alerted local authorities to its funeral protest and fully complied with police guidance on where the picketing could be staged.
  • The picketing was conducted under police supervision.
  • Snyder testified that he could see the tops of the picket signs as he drove to the funeral, he did not see what was written on the signs until later that night, while watching a news broadcast covering the event.
  • The funeral procession passed within 200 – 300 feet of the picketers.
  • The statements were not provably false, and were expressed solely through hyperbolic rhetoric.
  • The picketers obtained a permit and conducted their protest within the strict requirements of that protest.

The USSC protected the speech of the picketers, in large part, because the picketers made a case that their protest involved matters of “public concern.” This is critical for LEOs. This public concern protection allows LEOs to engage in the political process and voice their opinions regarding everything from the effect of layoffs on public safety to the danger posed by allowing LEOs to drive vehicles at high speeds when the odometer passes 150,000 miles….or more. The public concern doctrine is important. You should read the opinion to learn more about it. While it is not a bright line rule, the Court relies upon it often. The opinion actually strengthens the public concern doctrine and for that reason, LEOs will likely rely on this opinion in the future.

Justice Samuel Alito was the sole dissenter in the opinion. As he states,”Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.  . . . On the morning of Matthew Snyder’s funeral, respondents could have chosen to stage their protest at countless locations.  . . . Allowing family members to have a few hours of peace without harassment does not undermine public debate.” Finally, he wrote, “In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like [Snyder].”

The Court pointed out that this opinion is very narrow and applies only to the facts before the Court in this case. As Justice Breyer stated in his concurring opinion,  “The opinion does not examine in depth the effect of television broadcasting. Nor does it say anything about Internet postings.” Some 44 states and the federal government have recently enacted statutes to prevent or limit these types of protests. It remains to be seen if those statutes will survive the scrutiny of the USSC. Of course, it is the LEOs on the street who will supervise those future protests and uphold the law including this recent opinion from the USSC.

As the Snyder opinion holds, “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” While I may not agree with the way this case turned out, I do support your right as LEOs to speak on matters of public concern. Toleration of extreme divergent views is the price we pay for freedom as one man’s divergent view is another man’s moderate opinion. Given the suppression of free speech throughout the world, I much prefer our Constitution and our system.

Remember that the USSC said the picketers could not be held liable for money damages in our courts. However, I believe there is a higher authority who will judge the picketers. When they face that judgment, Marine Lance Corporal Matthew Snyder will be watching. I venture a guess they will seek his forgiveness and intervention at that time.

Stay safe.

 

 

 

 

Filed under Case Law, Education, Legal Update, LEO Litigation, Politics & Current Affairs Tagged with , , , , , , ,

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