Civil Suits By LEOs: Your Rights on the Civil Side of the Law

February 19, 2012 Leave a Comment

You are driving your patrol vehicle facing a green light at a busy intersection. In a scenario played out thousands of times each day, a driver approaching the red light from the right is too busy texting a friend to pay attention to the color of a traffic signal. He is traveling 50 miles per hour and never touches the brakes as he enters the intersection and strikes the passenger side of your patrol vehicle.There was no way for you to avoid the collision.

The impact is severe. When your car stops spinning, you realize you are hurt. Not the type of bruising and soreness you feel after arresting a resisting suspect, I mean really hurt. Your first responder skills kick in as you take a moment to assess your injuries. When you see the deformity in your right arm. you tell radio to send EMS code 1.

I have had the honor to represent many LEOs in many types of cases. I’ve stood with LEOs in grand juries, trial courts, civil service boards and internal affair interviews. I have also stood and protected LEOs and their families when they were injured on the job. I’m not just talking about workers compensation cases. I’m talking about using the civil courts to recover money damages for LEOs injured on the job.

Most of these cases involve motor vehicle collisions. However, that is not always the case. I sued on behalf of a LEO in response to a use of force claim filed by a young man and his parents after the LEO shot the young man. The LEO shot several times after the young man stabbed the LEO. I sued the perpetrator for the stabbing and the parents for buying the knife. I also sued a person who falsely alleged that a LEO fondled her on a traffic stop. We were successful in both cases and many others.

Civil suits are nearly always available to LEOs any time they are injured by the actions of another. Sometimes, the suits do not make sense, but often, this is the only way for the LEO to clear his name. In the case of the LEO falsely accused of fondling a woman on a traffic stop, he now has a copy of the civil judgment against this accuser in his personnel file. No lingering questions hanging over his head or rumors during promotion reviews. He was cleared. His accuser also has to write him a check every month.

Civil suits are separate and apart from a claim under workers compensation. Workers compensation is a no-fault system. If you are working and suffer an injury, the workers compensation system is there to ensure that your medical bills and other benefits are paid. However, you can file a claim for workers compensation and a civil suit against the person who injured you. In most states, however, you cannot sue your employer in a separate civil suit.

In the case above, you would have a potential civil suit against the driver who ran the red light. You may also have a claim against the driver’s employer. These claims often settle without the need for a civil suit especially when people pull out in front of LEOs. It is hard to say you did not see the marked car coming! Juries are very unforgiving of people who injure LEOs; especially DUI drivers!

The important thing is to find an attorney who is not working for your agency or government entity. You must find an attorney who will independently evaluate the merits of your case. In my experience, agencies do not care if you file suit against a person who injures you and are generally very supportive. This is especially the case when you file a countersuit against a person who sues you for excessive use of force. Remember that the suspect who punches and kicks you can be sued! That is the basis of your countersuit when that same suspect sues you for excessive use of force after you arrest him.

Finally, the attorney you choose must be willing to go the extra mile. I once represented a LEO who was shot serving a warrant. He and his partner were able to exit the house. The suspect took his own life after the responding LEOs formed a perimeter. I wanted to file suit against the suspect’s estate, but the family tried to prevent this by refusing to set up an estate. So, I set up an estate for the suspect, appointed an attorney to represent the estate and filed suit against the suspect’s estate! It took over two years, but were able to collect a settlement for the LEO. He is still working today, and I am proud to know that I helped him.

I learned many things in law school and I learned a lot on the street as a LEO. I practice law with a philosophy from the street, “Never give up.” Do not forget to consider a civil suit if you are injured on duty. This is so important to protect yourself and your family as you may not be able to work part-time jobs or earn any overtime while out of work. A recovery in a civil suit can help fill those gaps especially if you are not able to return to work. Read my blog post on underinsured/ underinsured motorist (UM) insurance to make certain you are doing everything possible to protect yourself. UM insurance on his personal vehicle would likely help our LEO in the accident described above.

You are a part of our court system, civil and criminal. Do not hesitate to use that system to help you when you are injured on and off duty. You deserve access to our courts. In fact, you earn that access every day.

Stay safe.

Filed under Education, Insurance, LEO Litigation, Officer Safety 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 , , , , , , , , , , , , , , ,

Active Shooters, Home Invasions and “Protecting Our Children”

January 8, 2012 12 Comments

What a sad, horrifying and bizarre way to begin 2012. From a media standpoint, there has been a lot of news to cover. A young mother shot and killed an intruder in Oklahoma, LEOs in Brownsville, Texas responded to a report of an armed suspect in a school on lockdown and shot the suspect, and three LEOs were murdered. Through all the commentary, there is a theme: Protecting our children.

The teen mom is being praised for being brave and she was brave. Let’s be honest though. A lot of people in her situation are brave…and deceased. Like many private citizens, she was the victim of a crime and facing an armed attacker. She called 911 to ask for help like millions of other citizens. Fortunately, she still had a right to possess, access and use a firearm to protect herself and her child. While much is being stated in the media about this brave mother who acted to protect her child, would her actions have been less brave if she was an 80 year old widow who lived alone? The media was attracted to this story because of the infant. You can read thousands of such stories at the Armed Citizen page of the NRA website. They have been publishing such stories for decades. However, the critical role of legal firearms ownership was lost on the media.

Ok, so I guess we know what to look for in news stories. People protecting children. Now I understand the rules. If you use deadly force to protect a child, the media and others will celebrate your efforts. Irrespective of their political opinions or beliefs, people will praise your actions. Well, not so fast….

On January 4, 2012, a school administrator in a middle school called 911 to report that a student entered the school with a gun. First, I did say middle school. Second, this tells you that it is highly unlikely that the school had an armed LEO on the property. Parents were surprised that a child was able to get a gun into the school and “thought they had more security.” The responding LEOs formed a team and entered the school that was on lockdown when they arrived. Yes, I said lockdown. The audio from the numerous cellphone calls and recordings is becoming available and it appears there is no dispute that the LEOs ordered the student to drop the weapon numerous times. Then they fired three times. They hit the suspect three times and he died. When it was released that the weapon the student pointed at the officers was a pellet gun, the controversy started.

No other students were injured; none. No officers were injured; none. The only person who was injured was the person who violated state law and numerous regulations and brought a weapon to a school. This only took place after he refused to drop the weapon and pointed it at uniformed LEOs who were giving loud verbal commands while pointing firearms at him. As the chief in charge of the jurisdiction stated, “He pointed the weapon at the officers, at which point the officers that were actively engaged by the suspect fired at least twice.” Kudos to the department for holding a press conference and showing a picture of the gun. However, within 24 hours, the second guessing and criticism began.

The news outlets are carrying stories of people demanding to know why the LEOs shot the suspect three times. The parents are claiming the LEOs used excessive force, the media is demanding to know why the pellet gun was not marked with a red tip, and other the news stories are blaming the pellet gun! The link in the last sentence will take you to a news story with a sub heading announcing, “Air pistol that looks like real gun costs teen his life.” The LEOs acted not only in self-defense but entered the building to protect 700 children, teachers and staff. Why is the notion that they used excessive force being entertained at all? So, now I’m confused. Clearly, it is not about the children?

Time and time again, we’ve seen LEOs criticized for using excessive force when they shoot a person who refuses to drop or points a “non-firearm” at LEOs. Keep in mind that a pellet gun can and will cause a serious injury or death at close range, especially to a child in a middle school. Remember also that the mother in Oklahoma shot an intruder who was armed with a knife! The reason for this insanity, I believe, is a focus on the firearm as the cause of crime and the “evil” to be remedied. Think about it, if the weapon held and pointed by the suspect in Brownsville was a firearm, little if any controversy would have seen the light of day. While you would have the routine clamor from the voice of collective ignorance that believe LEOs should never use deadly force, such stories would have been short-lived.
To prove my point, let’s look at the deaths of LEOs so far this year. Agent Jared Francom with the Ogden PD in Utah was killed while serving a search warrant. Park Ranger Margaret Anderson was shot and killed while attempting to stop a fleeing suspect near the Longmire Ranger Station in Mount Rainier National Park. The killer was a suspect in the shooting of four people just prior to Ranger Anderson’s death. In Puerto Rico, Sergeant Abimael Castro-Berrocales was shot and killed after stopping a speeding vehicle. In each case, there is a media firestorm about the ownership and use of firearms. I will not link to those websites or pages because I do not want to be associated with them, including one that blames Ranger Anderson’s death on a recent change in the law that allows private citizens to carry firearms in parks. Never mind the fact that the suspect fortunately died before he was able to kidnap or attack any other park visitors.
When law enforcement efforts and public policy focus on the “evil” of firearms, there is a cost. Stay at home moms are not able to protect their children. Schools do not have armed resource officers on campus and suspects are more likely to bring weapons to a school. Money and resources that should be spent on salaries and equipment are wasted on programs to “end gun violence” and “reduce gun crimes.” The pinnacle of this misdirected effort is the now infamous “Fast and Furious” program that led to the death of Border Patrol Agent Brian Terry. You can read my comments about this program here. Make no mistake, the groups that want to disarm the public want to disarm LEOs as well. They are the same groups that believe you should not use deadly force.
So what is the take away? What should LEOs make of all this coverage? Well, I believe I was right at the outset. It is all about protecting our children. The children of citizens who call for help, the school kids locked down and hiding under their desks and perhaps most important, the children of the LEOs in our country. Ranger Anderson’s children will never again hug their mother. Those children lost something that cannot be replaced. That is why I am so passionate about convincing LEOs not to be hesitant. From all accounts, Ranger Anderson, Agent Francom and Sergeant Castro-Berrocales did not have a chance to defend themselves and that is an all too common thread in recent shootings of LEOs. Do not let a single news story cause you to hesitate to use the appropriate level of force. The world will have years to debate your actions. You have the rest of your life to make up your mind.
In Graham v. Connor, Justice Rhenquist wrote, “The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight” and “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” So, while you can expect second guessing by the grossly uninformed, you can find some comfort that the USSC still recognizes the realities of law enforcement. The Court also recognizes your right to own firearms and protect yourself, as a citizen and a LEO. Work hard to protect that right on both fronts as your life, and the lives of your spouses and children, may one day depend upon it.

Stay safe.

Filed under Active Shooters, Case Law, FOP & POST, LEO Litigation, Media Relations, Officer Safety, Politics & Current Affairs, Use of Force, Use of Tasers Tagged with , , , , , , , , , , , , , , , , , , , , , , , ,

Year End Planning For LEOs: More than part-times and naughty lists

December 31, 2011 Leave a Comment

As you “undeck the halls,” defy gravity on ladders taking down lights and plot a strategy to stay off the naughty list next year, I’d like to take a few moments of your time to talk about some end of the year planning that is essential for LEOs. This is not planning the next firearm purchase, although that classifies as essential in my book, as I’ll leave that to other blogs! I’m talking about planning in the career, life and protection sense for you and your family. In short, a bit of wisdom, a word of experience and a pinch of “lawyering up.”

Career Development

Most LEOs wait until September to determine if they require training hours to meet their state requirements. Don’t do that; start now. Take a look at training available from state, regional and commercial sources. This will allow you to plan for classes, save for tuition if necessary and make a case with your chain of command for you to attend each class.

Be deliberate in your training plans. Work toward certificates, designations or specialized classes. Look for classes that allow you to obtain college credit as well. Many training companies now offer college credit as a standard benefit of taking their courses. For example, I took an Active Shooter Instructor Course through Team One Network. The class provided college credits that can be transferred later. The class was excellent by the way.

Finally, is there an area of law enforcement that interests you? If so, learn more about it! It is easier to reach a training goal if the end result lights you up just thinking about it! Do you have in interest in training? Are you interested in becoming the commander of a tactical unit? Are you working to reach command staff levels within your agency or another jurisdiction? The path to those goals is clear. Look at the resumes of those who are in your ideal job and take the classes necessary to get there!

Education

I could have an entire post about the excuses people have for not finishing their degrees. You certainly do not need a college degree, masters, law degree or Ph.D. to be a LEO. However, those initials after your name are required in more and more agencies to advance to the command level. It is increasingly hard to compete for the top spot in any agency without a degree. That is the reality of our profession. There are certainly exceptions to this rule. However, I want to hear that your promotions and career proceeded along a predictable path and not according to luck!

There are plenty of flexible programs available for LEOs who want to obtain or finish a degree. Do not overlook the traditional universities. For example, Kennesaw State University just north of Atlanta has a fantastic and flexible BS degree in Criminal Justice taught by LEOs, former LEOs and some of the best instructors the CJ field has to offer! The university also has a Masters Program in Criminal Justice. The classes are taught on weekends to assist with scheduling and the faculty is committed to your success!

There are also flexible programs, some offer on-line options, throughout the United States! The Fraternal Order of Police offers members the Fraternal Order of Police University or FOPU. The program currently offers a partnership with nine universities and colleges to provide members with assistance with scholarships, tuition and tailoring the courses to fit your needs.

In short, leave the excuses to the suspects on the street and in the interview rooms! Make it happen for yourself and your family in 2012!

Wills and other important papers

The new year is a great time to assess your personal situation with regard to your will and who will make decisions if you are not able to do so. Let’s face it, the new year brings marriage to many and divorce to others. If your circumstances have changed, “for better or for worse”, you must update your will, “living will”, and insurance beneficiary information.

I have personally been involved in many situations wherein a person did not change the beneficiary of their life insurance or department benefits and an ex-spouse collected death benefits. Don’t blame the department or the insurance company. They can only do what you tell them to do!

If you get married, divorced, have a child or adopt a child, you should have an attorney give your will a second look. If you do not have a will, we need to talk…and you need to read my previous post on this topic! For those of you who choose not to use an attorney to draft your will, that is your choice. However, remember that you will not be saddled with any defects in your will. The people you are trying to protect with the will are left to deal with those issues. If it makes you feel any better, I hired a lawyer to draft my will. Enough said.

If you are not able to make medical decisions for yourself or are not likely to survive, you are able to provide direction and designate who will make those decisions. While the names of the documents may vary, the goal is the same. Speak with an attorney in your state to find out more. Through my representation of hospitals for many years, I have seen the effects of a family working without direction from the ill or injured party in these situations. This can be a difficult and devastating time that can be made much easier with some advanced planning.

Many lawyers will offer discounts to LEOs for these services. Your local FOP lodge probably has an arrangement with a local attorney. The costs are minimal compared to the peace of mind and other benefits.

Insurance

There are three types of insurance your should address, update or consider this time of year. They are auto, life and legal defense. While there are certainly other types of insurance like disability and long-term care, we will save those for another blog post!

Automobile insurance is your best friend if you are injured because you stand the best chance of injury in a motor vehicle collision! I do not need to spend time convincing you of the crazy driving habits of the motoring public or of the grossly underinsured nature of the majority of the amateur stunt drivers on our roads! Your UM coverage on your personal car insurance policy will often help you if you are injured on duty. Yes, I said ON DUTY! Also keep in mind that your travel to and from work in your personal vehicle is normally NOT covered by workers compensation, so you will be on your own if you are injured driving to work by a driver with little or no insurance! You should pay the extra premiums to increase your UM policy limits as high as you can afford. For more information, see my previous blog post on this topic.

Life insurance is another matter. Your department likely has a death benefit as well as the state, federal and local government if you are killed in the line of duty as does the National Rifle Association. In addition, the Fraternal Order of Police has a death benefit for members. As stated above, update the beneficiaries as necessary!

Finally, let’s talk about legal defense. I recently defended a LEO accused of murder….yes murder, when the family of the perpetrator attempted to seek a warrant for his arrest. He was not an FOP member and did not have a legal defense plan. His fee, even with a LEO discount, was a significant percentage of his annual salary! A few years ago, a LEO was finally acquitted of criminal charges following a shooting. His legal defense bill was $100,000.00! I do a great deal of pro bono work for LEOs every year as do other attorneys around the United States. However, you should not rely on this option as it may not be available when you need it! The Fraternal Order of Police offers a legal defense plan that will protect you in the event of administrative, tort or criminal charges. It will also protect you in the event that you face liability for carrying a firearm pursuant to HR 218. The National Rifle Association offers insurance for LEOs who teach firearms classes. Do not wait until you have a problem to look for insurance. Most plans will not cover an issue that arises prior to your purchase of the insurance.

Remember to read your insurance policies! While you may believe it is a sure cure for insomnia, it is best to read it now. If the policy does not cover you for a particular situation, you can change that now. If you wait until after an incident and discover for the first time that the policy will not protect you and your family, insomnia will be least of your worries!

Looking forward to the future!

All predictions of the Mayan calendar aside, 2012 will hopefully be a great year for all of us! At the end of the new year, I hope to hear from you about your successes! Contact me if I can help you in any way. We are proud to stand for and with LEOs when they are injured and need assistance. I can help you find an attorney virtually anywhere in the United States.You should never stand alone.

May 2012 be safer for all of us and may God continue to protect each and every one of you!

Stay safe.

 

 

Filed under Education, FOP & POST, LEO Litigation, Uncategorized, Use of Force, Use of Tasers

TASER® Class: Use of Force, Risk Management and Legal Strategies Seminars

December 3, 2011 Leave a Comment

After 23 years in law enforcement, I’ve attended a bunch of classes. I’ve also taught a bunch of classes relating to everything from basic law enforcement to on-scene response to the Georgia Association of Law Enforcement Firearms Instructors. I was honored to attend a great seminar recently put on by TASER® International in Lawrenceville, Georgia. The class was open to LEOs, administrators and attorneys. With attendance of about 250, there is no doubt the class was popular and the topic appropriate.

As I walked around during the breaks, I saw a cross-section of our law enforcement community, many of whom I knew. I ran into LEO trainers, line officers looking to learn more, agency heads, county attorneys and members of our United States Military. What a great collection of leaders.

The seminar was excellent. The topics were fresh and timely ranging from use of force decisions from courts around the country to product innovations from TASER® to a healthy dose of science and medicine to educate attendees on the device. Having defended LEOs as well as physicians in medical malpractice cases for many years, I was impressed with the way in which the material cut to the chase and presented the facts.

The seminar instructors included TASER® CEO and Founder Rick Smith,TASER® General Counsel Mike Brave, Dr. Mark W. Kroll, PhD, FACC, FHRS who holds numerous patents associated with implemented cardiac pacemakers and a LEO who also works as an emergency department physician.

The TASER® device has saved lives and greatly reduced injuries for LEOs and suspects. The seminar stressed an analysis that bears some reflection. How many lives were saved because the TASER® was deployed and the use of deadly force was not required? That is a penetrating question. It is also the most important question that you must bring to the community and your administration when promoting TASER® use and analyzing TASER® deployments.

LEOs in the United States are well-trained and have a great deal of guidance from our courts on the use of force. As I’ve stated in previous posts, the ideal law enforcement encounter with a violent offender ends with no injury to the LEO or the offender. If that goal cannot be accomplished, we should strive to effect the arrest with the least amount of injury as well as using the least amount of force. Time and time again, we have seen that the TASER® accomplishes that goal and is an invaluable tool for LEOs.

As to those who seek to demonize the TASER®, an essential part of any tort lawsuit that seeks damages for an injury to a person is causation. In short, “Did the actions of a person cause the injury?” I’ve dealt with this in defending physicians and hospitals for many years. As LEOs you must always remember that the outcome of the subject’s encounter with LEOs does not create liability. Put another way, the person suing the LEO or the agency must prove that your actions actually caused the injury outlined in the lawsuit. The law requires proof of proximate cause also expressed as legal cause. More than anything, this seminar was effective in outlining great strategies to prepare LEOs to defend themselves in cases wherein the outcome of the arrest is a serious injury or death. In order to defend yourself in a lawsuit, like in any use of force case, you must gather the appropriate evidence.

The seminar presented common sense points seemingly lost in the media. For example, any pacemaker must be able to withstand the electricity transferred by a medical external defibrillator and the TASER® device delivers far less energy. Or the fact that the TASER® is powered by a battery the size of a digital camera battery and cannot deliver the same current as an electric chair. Yes, I’ve heard that argument made with a straight face but I could not stop laughing. The import of the seminar is that as LEOs we bear the burden to get the facts to the community and the media. The TASER® is a tool provided to us by a private company willing to take a risk. Just as the folks at TASER® protect you on the street, you must protect them in the courtroom, before the city council and with the media. Just like any law enforcement tool, one court case can change the game and result in the loss of a vital arrow in our quiver.

Like any law enforcement tool, you must be educated and be able to articulate the use of and reason for deployment of a TASER®. I recommend that you periodically read the training materials you received and review that material before you testify in EVERY case if a TASER® was deployed. Remember that the testimony you provide in every probable cause hearing or trial in municipal court for disorderly conduct is just as critical as your testimony in federal court in a use of force case. You should be just as fluent in the science of the TASER® as you are with the science behind your firearm. In the end, all of the research done on the TASER® and all of the expert testimony provided in every case will not determine if we are able to keep this valuable tool. It will be the actions of LEOs on the street and the manner in which they are able to articulate the reasons for their actions that will carry the day. That’s OK though. You are the best in the world at what you do.

Stay safe.

 

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

May It Please The Court… The United States Supreme Court

November 27, 2011 2 Comments

Each court has a listing of the attorneys who are permitted to practice in that court. In many instances, an attorney’s licensure in a particular state permits appearance in all trial level courts within that state. However, state appellate courts usually require attorneys to apply for permission to appear before that court. When this occurs, the lawyer is “admitted to the bar” of that court. The same is true of all federal courts. For instance, after I became an attorney in 1999, I applied for and was admitted to the Georgia Court of Appeals, the Georgia Supreme Court, the United States District Court for the Northern District of Georgia and the United States Eleventh Circuit Court of Appeals. While an attorney can submit paperwork requesting admission to these courts, I took great efforts to appear personally to be sworn into the bar of each court whenever possible. I recall each event with great pride and respect for the traditions of each court knowing how many attorneys appeared there before me and how many will follow.

On October 31, 2011, I was honored and humbled to be admitted to the bar of the United States Supreme Court. I traveled to Washington, D.C. with my wife, Barbara. the day before. We took in some sights, walked the mall and visited the WWII and Law Enforcement memorials. Sunday evening, we enjoyed dinner with several members of the Cobb County Bar Association and their families who also made the trip. On Monday morning, we entered the United States Supreme Court and met for breakfast in the cafeteria. The building is made completely of marble and it is beautiful! All around the building are reminders of the history of our country and the role the Court played in shaping our country.

Carrying on the proud traditions of the Court, I took the oath and was sworn in as Justice Roberts began the day. I stood beside other attorneys, including several members of the United States Coast Guard, as the clerk of Court administered the oath. We then received a warm welcome from Justice Roberts. True to tradition, the Court immediately began oral argument on the two cases on the docket for that day.

The oral argument, in both cases, centered upon the question of whether or not a person convicted of a crime is entitled to the sentence offered in plea negotiations prior to trial. The oral argument was passionate and the questions from the justices were predictably pointed. It was interesting to note that the justices sit at nearly eye level with the attorneys.

As I left the Court with Barbara, I thought of all of the decisions signed by the justices of the United States Supreme Court and how those decisions shape our lives as LEOs. Time and time again, the justices of the United States Supreme Court respect the reality of law enforcement in their decisions. From use of force to issues of officer safety, I am always impressed by the balance struck by the Court. When you read about an opinion of the USSC, never take someone’s opinion of what the Court said or the rule of law expressed in the opinion. Read the case. You can find the opinions here.Those opinions are filled with history and the rationale of the Court and provide guidance for all LEOs.

When I appeared to be sworn in, I carried with me a pen given to me by two friends when I graduated law school, my LEO ID and my retired LEO identification card. I also wore a blueline lapel pin. In a small way, I wanted to stand for the LEOs who make the cases that come to the USSC. Never forget it is the LEO on the street who takes the risks, solves the crime, makes the arrest and testifies in court. It is the LEO who trusts the Justices of the United States Supreme Court to balance the rights provided in the United States Constitution against the realities of law enforcement in the United States. As you begin your next shift, you can be certain the Justices of the United States Supreme Court ensure that you as LEOs will receive “Equal Justice Under Law.”

I would like to extend a special note of appreciation to the men and women of the United States Supreme Court Police for their courtesy and professionalism handling a near impossible task of providing safe access to one of the most prominent buildings in the world.

Stay safe.

Filed under Case Law, Constitutional Law, Due Process, Education, LEO Litigation, Politics & Current Affairs, Uncategorized Tagged with , , , , , , , , , , ,

If you tell them, they will know….”You’re Under Arrest!”

October 1, 2011 Leave a Comment

Over the past 20 years, defensive tactics have come a long way. Incorporating real world statistics and video footage of attacks on LEOs, instructors have changed the way LEOs respond to threats. Encouraging LEOs to close the gap to control a physical confrontation, recognizing that every confrontation is an armed confrontation due to the high number of LEOs who are disarmed and using an appropriate level of force immediately are all techniques that have kept LEOs safe and prevented many situations from escalating.

As part of this trend, instructors have taught LEOs to give verbal commands during physical confrontations. The goal is to make it clear to the suspect exactly what you want them to do. This also has the effect of helping to coordinate the efforts of several LEOs as they work together to secure a suspect without unnecessary injury. From high risk traffic stops to passively resisting suspects during misdemeanor arrests, communicating with the suspect has become a common occurrence in law enforcement.”Stop resisting,” “Give me your hand” and “Turn on your stomach” are commands that communicate exactly what is expected of a suspect.

As we all know, there is another benefit to giving loud verbal commands and instructions. If the encounter is observed by witnesses or recorded on video, observers will be able to relate that the LEOs were being professional and continuing to make it clear to the suspect exactly what was expected of him. I would like to suggest that LEOs add another phrase to their training, “You’re under arrest!”

In any situation, initial or continued resistance constitutes a criminal act. By communicating to the suspect that he is under arrest, he can no longer justify resisting on the grounds that he was not aware that the LEOs were in fact officers. Further, resistance after being advised he is under arrest will justifiably lead to further charges.

In my experience, the public, namely jurors, will support a LEO who is effecting an arrest. However, in many of the videos I see, LEOs do not tell the suspect he is under arrest. This is especially true when the LEO is attacked. This can lead to allegations that the suspect was confused about what was happening. So, make it clear and tell the suspect, “You’re under arrest!”

The last step is to properly document the events in your incident report. Document that you told the suspect he was under arrest as well as the probable cause for the charges such as simple battery, obstruction of a LEO, assault, etc. Make it clear to anyone reviewing your actions that the suspect was not only told to comply and what you wanted him to do, he was also told that he was under arrest early in the confrontation. This will also make for powerful testimony at trial.

I remember when our county jail installed a huge sign in the intake area. It simply said, “You are in jail.” While this should not have been a revelation to any suspect after being told he was under arrest and taking a ride in the back of a patrol car while wearing handcuffs, some folks were genuinely surprised to learn this was the intended destination all along. Go figure. Perhaps they thought we were heading to the ball game.

Stay safe.

Filed under LEO Litigation, Officer Safety, Use of Force 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 , , , , , , , , , , , , , ,

The Litigation Force Continuum: When Officer Presence Is Not Enough.

September 10, 2011 Leave a Comment

I love the practice of law. I am honored and proud to be a member of a profession that takes an oath to zealously represent the rights of others. However, practicing law often means staying in the office, writing briefs and speaking with people on the phone. This is the “necessary part” of practicing law that is not as exciting as standing in a courtroom advocating for a client. It may not be fun to watch and no one is going to make a movie about a lawyer speaking with clients and reading case law. However, lawyers are taught that at all times, in every environment, we must act as professionals.

In this regard, lawyers are a lot like LEOs. You have building checks on morning watch, traffic details on day shift and surveillance any hour of the day. I have yet to see a Hollywood blockbuster about a property crimes detective checking pawn shop records at her desk looking for stolen jewelry and I do not expect to do so in the future. However, that is the “necessary part” of law enforcement and at all times, we expect LEOs to look and act as professionals.

As one of my instructors in the police academy stated, “A career in law enforcement can be described as long periods of boredom highlighted by brief moments of sheer terror.” This is where the parallel to practicing law gets a bit thin. However, as I do not chase cars anymore, I need my adrenalin rush from some source. As my wife has expressed her sheer displeasure with the concept of a bungie jump, I rely on the courtroom for my excitement. It may not be as much fun, but the trade off is that no one is likely to try to shoot or stab me. A stern and pointed objection from opposing counsel just does not seem as threatening as an edged weapon.

The presence of a LEO, like the presence of a lawyer, is usually enough to prevent escalation of a situation. The more professional the LEO in appearance, demeanor and focused efforts to maintain order, the more effective he will be. In litigation, as on the street, sometimes officer presence is not enough and professional escalation of force is warranted, authorized and expected.

This week, I was asked to defend a LEO who was forced to take a life when a suspect attacked him on a traffic stop and attempted to disarm him. Some 16 months after the incident, a member of the suspect’s family attempted to take a warrant for the arrest of this LEO. In compliance with Georgia law, this prompted a hearing before a Superior Court judge. At the conclusion of the 6 hour hearing, the judge ruled that the shooting was justified, there was no probable cause that the officer committed a crime and he denied the applicant’s request for a warrant. You can read more Deal-Dublin Courier Herald-09-09-11 and see more at the highlighted links.

I know LEOs would rather be out of the spotlight and just do their jobs. I also know that the day a LEO takes a life in the performance of her duties is likely the most horrifying day of her life. While LEOs and their chiefs and sheriffs would rather let the official reports and dash camera footage speak for itself, sometimes you must escalate up the litigation force continuum to protect yourself, your reputation and the integrity of the process. When you do, be professional, be focused and come prepared to win. I believe the representation of a LEO in a critical incident should begin with the presence of attorney at the scene. I am happy to let my “attorney presence” suffice to keep order. However, sometimes that is not enough.

As much as I am honored and proud to be an attorney, I am humbled that this LEO and others place their confidence in me to protect their interests. I hope all of you have an attorney available to represent you. I encourage you to learn more about the Fraternal Order of Police and the Legal Defense Plan made available to members. Like any encounter that goes bad on the street, you must prepare in advance to defend yourself in a courtroom.

At the end of the hearing, my client left the courtroom. The truth about the worst day of his life, the day he nearly lost his life, was presented in a public courtroom. Through the court’s ruling, a weight was lifted from his shoulders. He is on patrol in his community and will watch over everyone, even his accusers, tonight and many nights in the future. May God watch over him and all of you as you do a job few in our society would choose or are able to perform.

Stay safe.

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

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