Glass Houses and the United States Secret Service

May 1, 2012 1 Comment

The United States Secret Service is under the microscope. Agents are accused of wrongdoing. Like every other law enforcement agency in the United States, there is a process for investigating allegations of misconduct. The agency’s Office of Professional Responsibility will interview witnesses, gather evidence and investigate the allegations like the internal affairs division of any other law enforcement agency would under the circumstances. The investigation will identify violations of agency policy and the law and will conclude with recommendations, discipline and potentially criminal charges. Such is the case with allegations of misconduct, whether unfounded or not, around the United States.

The allegations in this case are troubling and serious. If found to be true, the agents will face discipline including termination and families will likely be torn apart. There is no doubt that the agency is taking the allegations seriously and by all accounts, the investigation is in full swing.

I believe these allegations should be investigated fully and the agency should sanction inappropriate conduct. As long as the LEOs involved are treated professionally and provided with due process, you will not hear any complaints from me about the outcome. However, I am about tired of the raging hypocrisy in the news and the United States Congress about these allegations. Perhaps a history lesson is in order.

Name another person who was in a better position to influence a government official and have access to government secrets than Monica Lewinsky. Yet the media covered for Bill Clinton arguing that sex with a White House intern in the Oval Office was “personal conduct” and said nothing about his character. Congressman William Jefferson was caught with $90,000 cash in his freezer. NBC just fired staff for creating controversy in a racially charged shooting by manipulating a 911 recording. The company apologized and acted like this was the first time something like this happened. Have they forgotten the 1993 scandal with GM? Do you remember the 1983 Congressional page scandal? How about members of the United States Congress arrested for DUI? Congressman Charlie Rangel cannot even get paying his taxes or having tags on his car straight. Who could forget thankfully former United States Representative Cynthia McKinney striking a LEO in 2006! I could go on….and on….and on.

Perhaps to clear this up, we should allow United States Representative Hank Johnson to investigate these allegations as soon as he figures out how to keep Guam from tipping over. Maybe we should allow former United States Senator John Edwards to investigate these allegations. He may soon have a great deal of time on his hands…as soon as his trial is over. Perhaps Anthony Weiner could lend a hand with interviews. I hear he has some free time and is pretty handy with electronic media.

Here’s an idea. Follow me because it is way outside the box. Perhaps we should allow the investigation to continue and wait for the results. Perhaps the president should consider spending at least one holiday and vacation in Washington DC to give his security detail some time with their families. Perhaps the agency credited with safeguarding our monetary system and protecting presidents and heads of state since 1901 should be given the benefit of the doubt. Maybe, just maybe, the critics of the United Secret Service should let the established procedure for investigating such allegations proceed without trying to grab every sound bite opportunity.

I have been fortunate to take classes from, know and work with several LEOs from this agency. The thousands of agents, uniformed officers and support personnel of the United States Secret Service deserve better treatment. Faced with overwhelming media scrutiny and public condemnation, the agency still continues with its mission. The LEOs continue to put themselves in danger and remain committed to upholding their oaths. One part of that oath is to uphold and defend the United States Constitution. The LEOs accused of wrongdoing and those completely unconnected with the investigation deserve the protection of the constitution they uphold and defend.

Given the choice, I would trust a randomly selected member of the United States Secret Service over any one of their critics. It is not even a close call.

There are a lot of stories, commentaries, statements and opinions out there about the United States Secret Service. I hear criticism from all over. Is it just me or do you hear a lot of glass breaking?

Stay safe.

Filed under Constitutional Law, Due Process, LEO Litigation, Media Relations, Politics & Current Affairs, Social Networking Tagged with , , , , , , , , , , ,

Responding To The “Good Shoot”: Do I really need a lawyer?

April 10, 2012 1 Comment

It happens more often than not. A LEO is forced to use deadly force and the facts of the events leading to the shooting and the shooting itself clearly support a lawful, appropriate application of force. The criminal investigators interview witnesses who support the use of deadly force and the administrative investigation reveals no violation of departmental policy or state or federal law. This should not surprise anyone as LEOs in the United States are exposed to a tremendous number of training opportunities after they complete training academies. Judgmental use of deadly force classes and simulators as well as role play training leads to this result.

When I speak with and train LEOs, especially about the use of deadly force, I often hear this question, “Why would I need a lawyer if the use of deadly force was clearly justified?” This question strikes at the heart of the use of deadly force in our society. A shooting is a seizure. Every use of force by a LEO is an application of government authority. Therefore, every use of force and every shooting raises issues of constitutional import and courts justifiably take the LEO’s actions seriously.

Let’s look at the United States Supreme Court’s (USSC) opinion in Graham v. Connor, 490 US 386 (1989). This case sets out the standards applied to the use of force to control, arrest, and seize a person. In short, the USSC stated that the use of force by a LEO will be evaluated objectively according to the reasonableness test of the Fourth Amendment to the United States Constitution. However, the USSC also discussed the perceptions of the LEO in a use of force case. This analysis is critical to this blog post.

“The 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.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. []. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” 490 at 396-397. (emphasis added)
So, in this quote we see that courts will apply an objective test when evaluating the application of force. Courts are also instructed to take into account the “tense, uncertain and rapidly evolving” circumstances facing the LEO before, during and after the application of force. Finally, the USSC states clearly that the LEO’s intentions will not factor into the use of force analysis. In this quote we see, in my opinion, why it is critical for every LEO to consult an attorney after every OIS.
First, the facts that make up the analysis of “objective reasonableness” are gathered from many sources including the statements of the LEO who used deadly force. This means your statement to investigators is critical. You should have adequate time to rest, time to decompress and time to speak with an attorney to make certain that you can adequately relate the facts of the incident. Too often, LEOs I meet with after an OIS were ready to relate the “bare bones” facts just to get through the interview as quickly as possible if for no other reason, because they were nervous or had decided that the justification for the use of deadly force was obvious. It is critical that the LEO articulate exactly what happened before, during and after the use of deadly force. It is also critical for the LEO to relate any subjective perceptions that may not be available to the investigators. It is critical to interject into the investigation “the facts and circumstances confronting them” mentioned in Graham. The use of force is always a discretionary decision. You must make certain the investigators understand your perceptions as well as the facts.
Second, we have seen many times that the statements of the LEO are questioned and treated as suspect. In the case of Officer Rankin, he relayed the facts of what happened after a fatal OIS. Therefore, the only version of details available about the use of force were those provided by Officer Rankin. The problem in that case, as with so many others, is that the critics chose to disregard his statement as untrue. A grand jury, a civil trial and intense media scrutiny followed and he was cleared. However, there are those who will never believe his statements.
Third, the media, both formal and informal, will judge the use of force. Recently, for the second time in recent memory, a major news entity has admitted falsifying and altering the facts of an incident for the sake of manufacturing a better news story. There is no longer any comfort in believing that the work of reporters will eventually bring out the truth. While this was hopefully an isolated incident, LEOs are on their own to make certain that the investigations done by sworn investigators will gather and accurately document all facts after an OIS.

Put simply, it is important to protect yourself after an OIS. The opportunity to retain and involve counsel is often presented through a narrow window because the effectiveness of the attorney will be limited after some point. I have been involved in many situations representing LEOs where I was limited in the options available and some options were foreclosed completely due to the actions of the LEO before I was involved. In more than one situation, the LEO lost all rights to pursue justice and remedies in the courts. I discussed these situations in a previous post.

Finally, the attorney is able to objectively evaluate the facts of the incident and confirm the appropriateness of your actions. It seems obvious that you will likely believe that every use of deadly force was objectively reasonable because you made the decision. The role of the lawyer is to determine if facts outside your knowledge may create an alternative version of events. For instance, when you focused upon the suspect’s chest after looking at the gun in his hand, do you miss the fact that the suspect dropped the gun after the second of your five shots? Due to auditory exclusion, were you unable to hear the neighbors of a 15-year-old screaming that the gun in his hand was a toy? Due to low light conditions, were you unable to see that the object in the suspect’s hand was a cellphone and not a firearm? While these and other facts may not change the fact that the shooting was justified, an attorney is able to monitor these facts to ensure that your statement of your perceptions are accurate and support your decision to use deadly force.

The presence of an attorney at the scene of an OIS can benefit the LEO in many ways. While some LEOs are concerned about how this will appear to their chain of command, through proper education, this fear should be rendered moot. I know from experience. I have been with many agency heads who have told me I would be among the first people called to the scene if they were involved in an OIS. The lawful application of deadly force is never easy to watch on a video or listen to when the LEO relates what occurred. Remember that the use of deadly force is often subjected to scrutiny by individuals who are untrained and others who are suspicious of every OIS at the outset. An attorney is the only person on the scene of and during the investigation of an OIS who is focused solely on protecting the LEO. You are entitled to counsel. Protect yourself. Stay safe.

Filed under Active Shooters, Constitutional Law, Due Process, FOP & POST, LEO Litigation, Media Relations, Officer Involved Shooting, Officer Safety, Politics & Current Affairs, Social Networking, Use of Force, Use of Tasers

Lawsuits Surrounding Active Shooter Incidents: Is the pursuit of compensation overshadowing the goal of prevention?

March 28, 2012 Leave a comment

We have a sophisticated civil justice system in the United States. Individuals can pursue relief in local, state and federal courts with or without attorneys. Individuals have pursued cases to the United States Supreme Court without counsel to argue before the justices and seek redress for injuries. Without a doubt, our country provides an open and accessible forum to those who seek a civil remedy against a person, government or corporate entity. Those remedies range from monetary awards to injunctions. All are enforceable with the considerable authority of the courts.

When a tragedy occurs, it is reasonable and expected that people will seek the assistance of our courts. I routinely represent people on both sides of these cases. I file suit on behalf of people injured or killed by DUI drivers, armed robbers and people who are merely careless. I also defend cases filed by people who are injured or families who have lost someone. Despite the news stories about excessive verdicts, judges and juries are best known for careful consideration and reasonable verdicts. I have personally watched trial and appellate courts wrestle with tough issues and spoken with jurors after verdicts to learn how much they focused on the facts and law to arrive at a resolution. After all, in the end cases goes to a jury because the parties are unable to resolve their disputes.

There is no doubt that the policies and procedures of governments and law enforcement agencies are shaped by jury verdicts. The $8 million verdict this month in connection with the Virginia Tech shooting will get the attention of administrators irrespective of the anticipated appeal. A jury found fault and put a price on the compensation for the parents of the two students. This verdict will resonate for some time on campuses around the United States and policies will reflect this renewed focus on student safety. However, are those efforts appropriately focused on preventing future strategies?

With regard to active shooters, we are witnessing a conflict between opposing polices and philosophies. While everyone wants to prevent these tragedies, that is where the sides diverge. One side believes that high verdicts against landowners, universities and corporations will prevent future active shooter incidents. The other side understands that nothing can truly prevent the active shooter and recognizes that we can only find ways to reduce the threat and when the active shooter strikes, we must find ways to neutralize that threat as quickly as possible. Unfortunately, this debate is further complicated by the fact that the first group wants to restrict or eliminate the ability of citizens and law enforcement to react to the active shooter by limiting access to firearms. For example, LEOs have been able to carry firearms off-duty all over the United States since 2004. However, I have helped several LEOs who were criticized by college administrators for carrying firearms while attending classes. One LEO received a complaint when he wore his firearm into a day care center when he dropped off his child. He was in uniform. You just cannot make this up.

Only in rare instances do we have any advanced warning of an active shooter. Witnesses saw Colin Ferguson loading magazines on a New York City subway before he shot 25 people killing 6 on December 7, 1993.  However, more often than not, the warning signs are pieced together after the fact during the investigation. Although many active shooters have been stopped before they act out their plans, if we rely upon advance notice to reduce the number of deaths and injuries from active shooters, we will continue to be disappointed in our efforts.

Active shooter incidents are typically over within a few minutes. Intervention by LEOs or armed civilians must be swift and decisive. It is extremely rare for an active shooter to leave a scene and return some time later. Yet this was exactly what the active shooter did at Virginia Tech on April 16, 2007. Part of the threat and fear of an active shooter is the lack of predictability. That will never change.

We have a jury verdict nearly five years after Seung-Hui Cho killed 32 people and wounded 25 others on a college campus. Long after these heartbroken parents buried their children and far into the recovery for the injured students, we are still listening to self-proclaimed experts tell us about law enforcement techniques. As I stated in a previous post, they continue to criticize our profession and blame everyone from the LEOs to gun manufacturers.

The verdicts will not protect anyone, the news articles will not save anyone and the so-called “experts” will not be around to run toward the gunshots to save lives. It will be the LEOs who respond and the armed civilians on the scene who will protect the potential victims of the next active shooter. Perhaps when both sides of the argument agree on this point, the carnage will stop or at least the numbers of injured and killed civilians will go down. It would help if the media focused half of their attention on educating the public on how to respond to these incidents and less upon the verdicts years after the funerals.

Until then, LEOs will train to respond, plan for every contingency and prepare for the inevitable criticism that follows any incident. We do not need verdicts to motivate us. It is part of the oath. Stay safe.

Filed under Active Shooters, Constitutional Law, Due Process, Education, Legal Update, LEO Litigation, Officer Safety, Politics & Current Affairs, Use of Force Tagged with , , , , , , , , , , , , , , , , , , , , ,

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 , , , , , , , , , , , , , , ,

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 , , , , , , , , , , , , , ,

Follow

Get every new post delivered to your Inbox.

Join 2,326 other followers