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

Lies, Damn Lies and Furloughs.

May 22, 2011 Leave a comment

Long before furloughs of LEOs and budget cutbacks in the face of increasing attacks on LEOs, Desiderius Erasmus famously said, “In the land of the blind, the one-eyed man is king.” Now I never met Mr. Erasmus, but I am pretty certain that during his lifetime there was little discussion of laying off LEOs, sending LEOs home several hours before their shift to save overtime and disbanding specialized units to supplement patrol functions. However, from what I have seen, his quote is spot on and provides a clear path for all of us who wear the badge or support those who do.

Violent attacks on LEOs are not a new phenomenon. The Northlake Bank robbery in 1967, Norco Bank robbery in 1980, and the active shooter at who murdered four Lakewood Police Officers in 2009 are stark reminders that LEOs have and always will be under attack. However, what is lost among the statistics of the shootings, the politics of the response and the speeches at memorial services is an inescapable truth of every violent attack on a LEO; it could have been worse. As bad as the loss of a LEO on a traffic stop or the murder of students on a campus will always be, each one could have been worse. More often than not, the carnage ceased because of an accelerated LEO response or pressure from the response.

I am about as politically conservative as you will find and that includes fiscal matters. However, when it comes to LEOs and all of public safety, furloughs are unacceptable. The great statesman Henry Clay once said, “Government is a trust, and the officers of the government are trustees; and both the trust and the trustees are created for the benefit of the people.” Citizens are not shareholders of the government. A shareholder looks to a dividend in the form of cash. A citizen should properly look to the government to provide a safe environment to live, work and raise a family. When a government furloughs LEOs, the obligations that come with the role of a trustee dictate that such actions must be a last resort.

So the LEOs and LEO supporters who read this should be prepared to raise a flag of caution whenever public safety resources are eliminated or reduced. Have on hand the statistics that prove your point. More than quoting national crime statistics, look at local response times, calls for service and crime reports. Meet with your government officials, attend public forums and speak out. Your speech is protected as long as you speak on a matter of public concern. The reduction in service that will result from furloughs will affect you as members of the community and you have a right to speak up.

When you hear or read inaccurate information, counter it quickly. You will find that the public wants to be informed about the facts and they overwhelmingly value your input. You are the subject matter experts on crime, law enforcement and officer safety. Do not allow anyone else to claim that title.

In many respects, we are living in a land of the blind. LEOs do their jobs with both eyes open and must do so to stay alive. You are the leaders in your communities. If your government officials are not going in the right direction, you can lead your citizens toward the light. They will follow your lead if you act professionally, stick to the facts and work within our political system to make your voice heard. You may not be king, but your efforts will save lives.

Stay safe.

Filed under Active Shooters, Education, LEO Litigation, Officer Safety, Politics & Current Affairs, Use of Force, Use of Tasers Tagged with , , , , , , , , , , , , , , , , , , , , ,

I don’t need an attorney yet……do I?

May 1, 2011 Leave a comment

You receive a letter that you are under investigation. “I do not need a lawyer yet. I will just see what this is about.” You go through the interview and it is pretty intimidating. “I do not need a lawyer yet. I will see if they clear me.” You receive a notice to appear before the head of your agency to discuss the results and findings of the investigation. “I do not need a lawyer yet. I’ll see what the chief has to say.” The chief meets with you and advises the charges were sustained and she says you have an opportunity to state your case one last time. “I wish I had a lawyer. How did this happen?!??!”

So you hire a lawyer to appeal the chief’s decision. The lawyer will now file the appeal based on the letter you received, the interview you gave and the meeting you had with the chief. For better or worse, your attorney can only work with the case you hand him.

The role of a lawyer in an internal investigation is complicated. Your rights during investigations may arise from a Peace Officer’s Bill of Rights, your state constitution, the United States Constitution, a collective bargaining agreement or the policies of your department. Even though the role of an attorney may be limited in many instances, the role of the attorney as a counselor is never limited. An attorney can help you ensure that your rights are protected, make certain that you review the appropriate policies and documents prior to making any statements and help you organize your thoughts.

When you do not involve an attorney until the appeal phase, your attorney is forced to appeal the “record” you hand him. Any missteps you commit along the way will affect the strength of your appeal. In some instances, a mistake on your part could preclude an appeal entirely. As I stated in previous posts on this blog, administrative deadlines are “hard” deadlines. Missing a deadline affects your rights.

So, here is the bottom line. You should begin protecting your appeal rights as soon as you believe you may be subject to discipline.  Develop a relationship with an attorney early to make it easier to reach out to him. When it comes to consulting an attorney early, an ounce of prevention is worth a pound of cure.

Stay safe.

Filed under Education, LEO Litigation 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 , , , , , , , , , ,

Cop Killer Wanted: Alive, if possible.

April 3, 2011 1 Comment

I receive calls and email from LEOs about a variety of topics. Some questions and discussions led to posts on www.bluelinelawyer.com. I also read other blogs, LEO-focused websites and the internet sources. This blog post discusses a topic that is sensitive, controversial and important for LEOs. It involves the extraordinary efforts of LEOs to arrest and prosecute cop killers.

Now I know my use of the term “cop killer” will no doubt have someone jumping up and down. However, in an age of dashcam videos, the prevalence of surveillance video and handheld video capability on cellphones, we are seeing a trend. Many shootings of LEOs are memorialized on video. The value of these videos is immeasurable including prosecution and training. For my purposes and based upon my beliefs and analysis, if a perpetrator is caught on video shooting a LEO, I will call him or her a cop killer. The camera does not lie.

With the increase of LEOs killed in violent attacks this year and last, many have asked why LEOs go to such extraordinary lengths to take cop killers into custody? In many instances, LEOs negotiate cop killers into surrendering when the perpetrator actually wants a violent confrontation. I thought this question deserved some contemplation especially for the civilian readers of this blog.

I did a little research and confirmed what I suspected: nearly every LEO oath of office includes a solemn oath to uphold the Constitution of the United States. But what does that mean in practice? Well, it is more than avoiding unreasonable searches and seizures. This portion of the LEO’s oath of office means that we guarantee due process to every person accused of any crime. Due process includes the obligation to effect every arrest using the least amount of force necessary. It also means affording the accused the benefit of the protections of our constitution including counsel, a speedy and public trial and the right to confront witnesses against him, to name but a few.

So why are so many cop killers taken into custody? The short answer is because many brave men and women risk their lives and bring to bear every resource to do so. The longer answer is that these efforts and resources are focused upon a principle that our LEO oath is more than a piece of paper we sign. It is a commitment to carry out the obligation that we voluntarily accepted: to uphold the Constitution of the United States. Like the use of force in every context, LEOs react to the level of force facing them. With so many perpetrators, LEOs across our country do everything possible to use the least amount of force necessary to perform their duties.

Take one look at the Officer Down Memorial Page and you will see that violent attacks on LEOs are increasing at an alarming rate. Readers of this blog will know my theory as to why: STOP LETTING VIOLENT CRIMINALS OUT OF PRISON! However, for every LEO killed in the line of duty, there was a group of LEOs who were willing to do everything possible to put their duty first and effect an arrest of the suspect.

The next time you hear or read about someone complaining how LEOs violate people’s rights you can stand proud and respond that when pushed to the limit of human emotion, LEOs consistently uphold the constitution and arrest those who assault and kill LEOs. Put this scenario before our critics, “You learn that your best friend is dead simply because he did his job. You have access to a firearm and control over media access to the location of the person who killed him. You know that your friend’s children will never see their parent again. You also know that the criminal justice system will move slowly to prosecute and punish the perpetrator. Would you have the courage and integrity to put your life in danger to provide the killer his day in court?” All across the United States, LEOs do so in every instance. Honor is doing what you must not what you desire.

Because LEOs uphold their oaths, because they risk their lives to guarantee constitutional protection to strangers and because they exercise discretion and commitment to duty before self every day, I will keep working to protect their due process rights. To the warriors who pursue cop killers, I say “Thank you for making us all proud.” When you meet those fallen officers again in heaven, they will join God in praising you. “Blessed are the peacemakers for they shall be called the children of God.” Matthew 5.

Stay safe.

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

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 , , , , , , , ,

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