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

Lance LoRusso Becomes a Regular Contributing Author to lawenforcementtoday.com!

March 12, 2012 Leave a comment

I just submitted an article and am honored to become a regular contributing author to http://lawenforcementtoday.com. The website reaches over 160,000 people and LEOs from around the world! You can also follow the site on Twitter @LawEnforceToday and find them on Facebook! Stay safe.

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

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

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

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

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

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 , , , , , , , , , ,

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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