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

Active Shooters, Home Invasions and “Protecting Our Children”

January 8, 2012 12 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, Case Law, FOP & POST, LEO Litigation, Media Relations, Officer Safety, Politics & Current Affairs, Use of Force, Use of Tasers 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 , , , , , , , , , , ,

The Price of Due Process: Having faith in the system

September 25, 2011 Leave a Comment

Last week, we were inundated with news stories and commentaries about the execution of a convicted cop killer. In my post last week, I allowed you to read the course of the appeals and the review of the guilty verdict against him. Many were surprised to learn that many courts and the Georgia Pardons and Parole Board took great care to review the evidence and procedure involved in his trial as well as his claims of “actual innocence.” Many people were frustrated with a process that delayed the judgment of a court for over 20 years including a last minute review by the United States Supreme Court. While I understand the frustration and certainly feel for the families of the victims in these cases, the extreme lengths taken to ensure due process is a bedrock of our constitution and criminal justice system.

The Fifth Amendment to the United States Constitution 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 offense 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.

The words applicable to criminal cases mean something in our country. “No person shall be … be deprived of life, liberty, or property, without due process of law.” For all of the delay, cost and agony for the families of the victims, commitment to these principles separates us from the many countries in which an accused has no right to confront the witnesses and evidence against him, protesters are not permitted to freely voice their opposition to an execution and the press is not free to communicate the facts and publish the opinions of others.

I hope that those who worked so hard to ensure due process for the convicted murderer will continue to do so in an unbiased manner to ensure equal protection of the law for everyone. LEOs who are accused of misconduct are too often “tried and convicted” in formal and informal media venues before the investigations into their conduct are complete. Our Constitution applies equally to all citizens, and those who put their lives on the line to protect the rights of others deserve every protection under the law.

If you are not a LEO, welcome to Blueline Lawyer. Over the past few weeks, I was honored to welcome many new readers. You must understand the perspective of a LEO to fully appreciate the concern over the delay in bringing Mark Allen MacPhail’s killer to justice. For every LEO murdered in the line of duty, there is a story of a denial of due process and a violation of constitutional rights. Each LEO died in the performance of the duties outlined in an oath voluntarily taken. Let us not forget they lost their constitutional rights to live free, raise families and enjoy a full life.

As for me, I will support and defend our Constitution. For all of the criticisms, we still have the best system of justice in the world. Perhaps the price of due process is worth the knowledge that our rights are secure and the words in the United States Constitution are more than just a notion. Our system of justice is truly tested by the tough cases. The cases that make us stay true to the rule of law make our system stronger. This recent case shows that the principles of due process are alive, well and powerful in our country. May they continue to guide us long into the future.

Stay safe.

Filed under Case Law, Constitutional Law, Due Process, Education, LEO Litigation, Politics & Current Affairs, Social Networking, Use of Force, Use of Tasers Tagged with , , , , , , , , , , , , , ,

Equal Justice Under Law: The Oath Sworn By Officer Mark Allen MacPhail

September 18, 2011 8 Comments

On August 19, 1989, Savannah Police Officer Mark Allen MacPhail came to the aid of a homeless man. He did so for a reason. It was not a photo opportunity, nor was it an event organized by community groups to help those in need. Officer MacPhail came to the aid of Larry Young because he took an oath to serve and protect. He had the physical ability to turn a blind eye and walk away, but his heart and his moral compass compelled him to act. Larry Young deserved equal protection of the law. A few moments later, Officer MacPhail was dead.

Much has been made of the claims of innocence made by Troy Anthony Davis, the individual charged and convicted of killing Officer Mark Allen MacPhail. Over twenty years later, we are approaching another scheduled execution of Troy Anthony Davis. On Monday, September 19, 2011, the Georgia State Board of Pardons and Parole will again consider a clemency petition from Troy Anthony Davis. It is important to note the statements and opinions of the judges who have heard Troy Davis’ petitions and appeals over the past two decades.

When Troy Davis petitioned the United States Supreme Court for a hearing that would provide an opportunity for him present evidence of his innocence, the Court granted his request on August 17, 2009. The USSC sent the matter to the United States Federal District Court for the Southern District of Georgia in Savannah. On August 24, 2010, Federal District Court Judge William Moore issued a ruling.

Although the USSC sent the case to Judge Moore for a hearing, Justice Antonin Scalia dissented to this decision. In his dissent, he included a procedural history of this case including the number of courts and administrative reviews afforded Troy Anthony Davis and the truth about the “new evidence” Troy Anthony Davis claimed would prove his innocence. His summary and comments are as follows:

“Eighteen years ago, after a trial untainted by constitutional defect, a unanimous jury found petitioner Troy Anthony Davis guilty of the murder of Mark Allen MacPhail. The evidence showed that MacPhail, an off-duty police officer, was shot multiple times after responding to the beating of a homeless man in a restaurant parking lot. [Citation omitted] Davis admits that he was present during the beating of the homeless man, but he maintains that it was one of his companions who shot Officer MacPhail. It is this claim of “actual innocence”-the same defense Davis raised at trial but now allegedly supported by new corroborating affidavits-that Davis raises as grounds for relief. And (presumably) it is this claim that the Court wants the District Court to adjudicate once the petition is transferred.

“[T]he allegedly new evidence we shunt off to be examined by the District Court has already been considered (and rejected) multiple times. Davis’s postconviction “actual-innocence” claim is not new. Most of the evidence on which it is based is almost a decade old. A State Supreme Court, a State Board of Pardons and Paroles, and a Federal Court of Appeals have all considered the evidence Davis now presents and found it lacking. (I do not rely upon the similar conclusion of the Georgia trial court, since unlike the others that court relied substantially upon Georgia evidentiary rules rather than the unpersuasiveness of the evidence Davis brought forward. [Citation omitted]

 The Georgia Supreme Court “look[ed] beyond bare legal principles that might otherwise be controlling to the core question of whether a jury presented with Davis’s allegedly-new testimony would probably find him not guilty or give him a sentence other than death.” [Citation omitted] After analyzing each of Davis’s proffered affidavits and comparing them with the evidence adduced at trial, it concluded that it was not probable that they would produce a different result. [Citation omitted]

 When Davis sought clemency before the Georgia Board of Pardons and Paroles, that tribunal stayed his execution and “spent more than a year studying and considering [his] case.” [Citation omitted] It “gave Davis’ attorneys an opportunity to present every witness they desired to support their allegation that there is doubt as to Davis’ guilt”; it “heard each of these witnesses and questioned them closely.” [Citation omitted] It “studied the voluminous trial transcript, the police investigation report and the initial statements of the witnesses,” and “had certain physical evidence retested and Davis interviewed.” [Citation omitted] “After an exhaustive review of all available information regarding the Troy Davis case and after considering all possible reasons for granting clemency, the Board … determined that clemency is not warranted.” [Citation omitted]

After reviewing the record, the Eleventh Circuit came to a conclusion “wholly consonant with the repeated conclusions of the state courts and the State Board of Pardons and Paroles.” [Citation omitted] “When we view all of this evidence as a whole, we cannot honestly say that Davis can establish by clear and convincing evidence that a jury would not have found him guilty of Officer MacPhail’s murder.” [Citation omitted]

 Today, without explanation and without any meaningful guidance, this Court sends the District Court for the Southern District of Georgia on a fool’s errand. That court is directed to consider evidence of actual innocence which has been reviewed and rejected at least three times, and which, even if adequate to persuade the District Court, cannot (as far as anyone knows) form the basis for any relief. I truly do not see how the District Court can discern what is expected of it. If this Court thinks it possible that capital convictions obtained in full compliance with law can never be final, but are always subject to being set aside by federal courts for the reason of “actual innocence,” it should set this case on our own docket so that we can (if necessary) resolve that question. Sending it to a district court that “might” be authorized to provide relief, but then again “might” be reversed if it did so, is not a sensible way to proceed.”

Judge Moore heard testimony after providing Troy Anthony Davis’ counsel months of preparation. He issued a ruling that includes this statement:

“Before the Court is Petitioner Troy Anthony Davis’s Petition for a Writ of Habeas Corpus. [Citation omitted] Pursuant to the order of the Supreme Court, this Court has held a hearing and now determines this petition. [Citation omitted] For the above stated reasons, this Court concludes that executing an innocent person would violate the Eighth Amendment of the United States Constitution. However, Mr. Davis is not innocent: the evidence produced at the hearing on the merits of Mr. Davis’s claim of actual innocence and a complete review of the record in this case does not require the reversal of the jury’s judgment that Troy Anthony Davis murdered City of Savannah Police Officer Mark Allen MacPhail on August 19, 1989. Accordingly, the petition is DENIED.”

When Officer MacPhail chose to act in accordance with his oath of office on August 19, 1989, he carried on his uniform and badge of office the authority of the law, the power of our courts and the commitment of his community. To walk away would have been to betray the trust placed in him. So Officer MacPhail placed his life in danger to intervene in an altercation to protect the rights and safety of a stranger. He took a risk that his family would lose him and that he would give his life in the performance of his duty. When Troy Anthony Davis shot and killed Officer MacPhail, he pointed a gun at the representations of law and order in our society and pulled the trigger on the principles upon which we stand.

Officer MacPhail lost his life that day, but the principles that drove him to protect a homeless stranger survived him. Those same principles afforded Troy Anthony Davis a trial, appeals and unprecedented reviews of the evidence against him. Troy Anthony Davis received due process and equal justice under law. The time has come to honor the principles upon which we stand and give Officer MacPhail the justice he deserves.

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

Fontenot v. TASER International, Inc.-Case Study and Series

July 30, 2011 Leave a Comment

On July 19, 2011, a federal jury returned a $10,000,000 verdict against TASER International, Inc. I’ve received several calls and emails from LEOs about this verdict. Readers of Bluelinelawyer know that I believe in the TASER. This link will take you to one of my articles.

In my series, Lawsuits Against LEOs, I explored some of the realities and my insights about lawsuits involving LEOs. In this new series, I will use this case to walk you through a case involving use of force and products used by LEOs. It is not enough to look at this verdict and assume that TASER did anything wrong, that the LEOs involved were at fault or that law enforcement should walk away from TASER devices. The goal of this series is to inform and empower LEOs. In addition, it is my hope that you will learn to separate the hype and publicity of suits from the facts.

One of my law professors once said, “In every lawsuit, there are real people on both sides of the “v.”  I will pull the documents from this case, break down the case and the trial and follow the inevitable appeal. I will also discuss the role of the LEOs, the lawyers and the family of the suspect who died. As we go through the series, you will learn from “both sides of the ‘v’.”

You can read a news article about the verdict here. As a start to looking at both sides of the case, read through this article, written to promote the lawyers who sued TASER International, Inc. The official name of the case, known as the style, is Fontenot v. TASER International, Inc., United States District Court for the Western District of North Carolina, Charlotte Division, Case No. 3:10-CV-125 .

I look forward to this series and your comments and questions. Stay safe.

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

Attempting to Elude LEOs in a Vehicle is a Violent Crime-New Case Law from The United States Supreme Court!!

June 12, 2011 Leave a Comment

On Thursday , June 9, 2011, the United States Supreme Court released its opinion of  Sykes v. United States. The case settles a legal question that split federal circuits: Is the attempt to flee or elude the LEOs in a vehicle a violent crime? The short answer is “Yes.” You can read the entire opinion here.

The USSC examined this question in connection with a mandatory sentencing case. Put simply, Sykes claimed that fleeing from LEOs in a vehicle in Indiana was a felony, but not a violent felony. Sykes was fighting a mandatory sentencing under the federal Armed Career Criminal Act. The USSC examined the Indiana law at issue from one of Sykes’ prior convictions as well as the crime of fleeing or attempting to elude LEOs in a vehicle. In a great opinion, Justice Kennedy outlines why this crime constitutes a violent felony. I recommend that you take the time to read the opinion.

Like all appellate opinions, the USSC uses prior case law and public policy to explain the reason behind the opinion. The Sykes opinion explains the “evil” behind the crime of using a vehicle to flee or attempting to elude LEOs. “The attempt to elude capture is a direct challenge to an officer’s authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon’s conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide.”

Justice Kennedy goes on to cite to Scott v. Harris, a 2007 opinion that held that LEOs were not required to abandon efforts to chase a suspect in the hope that the suspect would stop fleeing and stated, “Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury.”

I am certain that most if not all LEOs will cheer this opinion. Suspects who flee and attempt to elude LEOs in a vehicle place both the public and the LEOs in the chase at risk. Like many other opinions from the USSC, this case should confirm for you that the USSC will read your reports, watch your videos, pay attention to your trial testimony and maintain a practical approach to law enforcement in the United States. Keep this in mind when you start your next shift.

Stay safe.

 

 

Filed under Case Law, Education, LEO Litigation, Officer Safety, Politics & Current Affairs, Use of Force Tagged with , , , , , , , , , , , ,

The Exclusionary Rule and Probation Revocation Hearings; New Georgia Law!

June 4, 2011 2 Comments

On May 31, 2011, the Georgia Supreme Court issued an opinion in State v. Thackston. You can read the full opinion here. The opinion reverses over 30 years of precedent and answers a critical question in Georgia: Is illegally seized evidence admissible in a probation revocation hearing? The Supreme Court held that illegally seized evidence is admissible in probation revocation hearings in Georgia. The opinion, authored by Justice Thompson, contains a great insight into the history of the Exclusionary Rule and the underlying role of probation in our criminal justice system. I highly recommend that you read the opinion and the concurrence/ dissent by Justice Benham.

The Exclusionary Rule in Georgia is codified at O.C.G.A. § 17-5-30. This statute reads as follows:

(a) A defendant aggrieved by an unlawful search and seizure may move the court for the return of property, the possession of which is not otherwise unlawful, and to suppress as evidence anything so obtained on the grounds that:

 (1) The search and seizure without a warrant was illegal; or

 (2) The search and seizure with a warrant was illegal because the warrant is insufficient on its face, there was not probable cause for the issuance of the warrant, or the warrant was illegally executed.

 (b) The motion shall be in writing and state facts showing that the search and seizure were unlawful. The judge shall receive evidence out of the presence of the jury on any issue of fact necessary to determine the motion; and the burden of proving that the search and seizure were lawful shall be on the state. If the motion is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant in any trial.

 (c) The motion shall be made only before a court with jurisdiction to try the offense. If a criminal accusation is filed or if an indictment or special presentment is returned by a grand jury, the motion shall be made only before the court in which the accusation, indictment, or special presentment is filed and pending.

The Thackston Court held that section (b) of the statute answered the question in the final analysis. The words, “shall not be admissible against the movant in any trial” indicated that the statute only controlled the admissibility of evidence in a criminal trial. As a probation revocation hearing is not a “trial”, the Court decided that this statue and the Exclusion Rule in Georgia, does not prevent the introduction of illegally seized evidence in a probation revocation hearing.

So what is the “take away” for LEOs? First and foremost is to remember that a person who is searched illegally can file suit under 42 U.S.C. § 1983 for deprivation of civil rights under color of law. Second, this case represents a statement of policy in Georgia regarding probation. As quoted in the Thackston opinion, the policy behind probation is to allow offenders to serve their sentences while reintegrating into society. When a court conducts a probation revocation hearing, the inquiry is simple; is the probationer abiding by the rules of probation, including the obligation to obey all criminal laws, sufficient to allow him to finish his sentence without being incarcerated. The Thackston opinion adopts a policy that is aimed at getting at the truth. Simply stated, whether or not the evidence of drug possession is admissible in a criminal case against the probationer is secondary to the question of whether or not the probationer was in possession of drugs.

Stay safe.

 

 

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

Casual Conversations, Formal consequences!

April 17, 2011 Leave a Comment

More often than not, when a LEO is “under investigation,” the entire agency knows about it! Let’s face it, as a profession were are good at respecting the privacy rights of the public, but “scoop” on our co-workers is generally fair game! This article is about the pitfalls of those casual conversations and the ever churning rumor mill present in so many, if not most, agencies.

Investigations into misconduct should be conducted in a confidential manner for several reasons. First and foremost, LEOs are professionals. An allegation into misconduct of a fellow professional is a serious matter. Therefore, the details, as well as the existence, of an investigation should be closely guarded to the same degree as a sensitive criminal allegation. Just as a false criminal allegation can destroy the reputation of a private citizen, the mere allegation of misconduct, even if unfounded, can signal the end of a LEO’s career.

The second reason to keep these matters confidential is simple; until proven, an allegation is just that and nothing more! Agency administrators are very sensitive to keeping criminal allegations under wraps until investigators possess sufficient probable cause to bring charges against a citizen. The same respect and presumption of innocence should be afforded to LEOs who are under investigation. Sounds like a due process issue to me, but what do I know. I’m just a lawyer!

The third reason to avoid casual conversations about pending investigations is to protect the integrity of the process. Standard investigative techniques mandate that we separate witnesses to avoid tainting their impressions and potential testimony. When the agency is buzzing with rumors and innuendo about an administrative investigation, you risk tainting the information to be gleaned from interviews. Those tainted statements will surface again in personnel hearings, criminal cases and lawsuits. By then, it is too late to “unring” the bell.

Finally, LEOs who are under investigation should beware of any casual conversations with anyone. Remember that Garrity protections apply to statements compelled by management. Any statements you make to a deputy chief who asks you what happened “off the record” may not be protected under Garrity. If this occurs, you will be required to show a court that you subjectively believed that you were required to answer those questions. While I would hope that such “off the record” conversations are not an attempt to entrap you, I was not born yesterday! This is particularly important in any use of force investigation.

So here is my advice for administrators and LEOs who are under investigation as well as any LEO in the agency. For the folks in charge, your agency should have a strict policy to keep any allegation of misconduct confidential. This includes investigations conducted by a criminal division, internal affairs or at the supervisor level. The consequences for failing to keep such allegations confidential should be the same as the consequences for leaking information on a sensitive criminal investigation to the public.

For the LEOs under investigation, speak only to the investigators and your attorney. Nothing good will come from discussing these matters with your co-workers. At the very least, you may taint the very testimony that can exonerate you. In the worst case scenario, you may place a friend at the center of an investigation that does not concern her. If you are approached by anyone who desires to speak “off the record,” you should respectfully decline the opportunity irrespective of the rank of the person who initiates the conversation. Tell them you are under orders from your attorney not to discuss the matter without counsel present. Any lawyer will give you this instruction once the lawyer is engaged to represent you. If you do not have an attorney to assist with your defense of the allegations, perhaps you should reconsider that decision.

For the rest of the LEOs in the agency, preserve and exemplify the highest standards of our profession by respecting the investigative process. Refuse to engage in the idle banter and rumor sharing and discourage others from doing so. Remember that your “off the record” statement could change the direction of the investigation and become the pivotal piece of evidence in a discipline hearing or trial. How will you defend the fact that your statement was based upon a rumor? Most important, recognize that you could be under investigation tomorrow. What level of professionalism should you expect from your fellow professionals?

Stay safe.

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

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