Whitney Houston and the Push to Legalize Drugs: A Perspective From the Street and a Reality Check

February 12, 2012 5 Comments

I love music. Music has been a big part of my life. I drove around in a patrol car listening to everything from jazz to rock to classical, often depending upon how my calls progressed on a given day. Music provides an escape for me, helps me relax and inspires me in many ways.

Today, I watch story after story about the passing of Whitney Houston. Everyone seems to be so shocked that this 48-year-old woman passed away. LEOs are not surprised. We see first hand thousands of people who never live to the age of 48. We see lives torn apart, children abused and people killed by illegal drug users driving under the influence. While the media is dancing around the reason for her cause of death and whether or not it was drug related, we all saw the effect of drugs on her life.

So, imagine if drugs could be purchased at every grocery store or gas station. People could pick up a hit of speed on the way to work or a six pack of ecstasy on the way to a party. Perhaps you’re having trouble sleeping. You could get 50 morphine tablets to help you get some rest. The possibilities are endless. So are the effects.

People who use illegal drugs have friends and families….at least for a while. They drive on the roads that we all use everyday. They make the products that we use, the cars that we drive, and provide the services we need to live in our society. We all suffer a tremendous cost, both financial and personal, based upon the effects of illegal drugs. Talk to the children of people who are too high to feed them, the parents who lose track of their children who would rather get high than anything else or the people injured by drivers who are high behind the wheel. LEOs see this every day.

Drugs are not bad because they are illegal. Drugs are illegal because they are bad. I do not know what caused the death of Whitney Houston. Perhaps it was a congenital disorder completely unrelated to her past. Perhaps she fell in a common household accident. Or perhaps her body simply had enough. We may never know.

Whitney Houston was an American treasure. Her voice was a gift from God. Her short life reminds us of tragedies played out in our country every day. Families destroyed, people killed and many more permanently injured, the proof is right there for anyone to see. However, we will not see a condemnation of drugs in the aftermath of Whitney’s Houston’s demise. We will instead see people talking about how sad they are about her passing, how unfortunate it is that she passed away at such a young age and how she will always be remembered. Then Monday, the political machine advocating for the legalization of drugs will crank up and move forward.

If you want to know about the effect of illegal drugs, ask any LEO. Ask them about the children in protective custody, the parents who receive death notifications about their children and the innocent motorists whose lives changed forever in an instant.

Ask any LEO because they are on the front line and see the effects of illegal drugs every day. Ask the families of the fallen LEOs killed by drug dealers and users. Ask them. They will tell you. Will you listen?

Stay safe.

Filed under Illegal drugs, Officer Safety, Politics & Current Affairs 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 , , , , , , , , , , , , , , , , , , , , , , , ,

Support Comes In All Forms…

December 11, 2011 1 Comment

It is easy as LEOs to focus on the bad moments in a day. For some reason, those moments are more memorable for LEOs including bad wrecks, domestic disputes and simple nonsense that makes you wonder sometimes if Darwin was completely wrong! However, there are moments that also give us faith and strength as well as support. A kind word from a stranger, a thank you note sent to the chief or some other small gesture that reaffirms our commitment and confirms that the time spent in the cold and rain is appreciated.

This past weekend, I was honored to enjoy another pheasant hunt with friends and clients from six states at the Mountain View Plantation in Delta, Alabama. This marks the eleventh year we gathered to exchange stories, catch up and form new friendships. The hunters represented many professions. We had lawyers, bankers, accountants, pharmacists, financial advisors, retired LEOs, professors, students, vehicle restorers, physicians, IT professionals and others. Many attendees were retired military and most served our country in the armed forces or law enforcement. We all have many things in common including our love for the outdoors and hunting and a commitment to service before self.

This year, I added a mission to our hunt. This summer, I met the founders of Hunting For Heroes at the Biennial Conference for the Fraternal Order of Police in Salt Lake City. This non-profit takes disabled LEOs hunting. They support the LEOs and their families as they transition to a life they never imagined. H4H, as they are also known, is committed to using any method necessary from specialized wheelchairs to modified weapons in order to get these LEOs into the woods to fish and hunt. From dove to turkey to trophy bucks, the game may change, but the mission is the same. They make certain these LEOs never feel alone or confined to their homes. Many of these LEOs have never hunted before and H4H opens up a new world of recreation and enjoyment for them and their families.

This year, I told the  hunters about H4H. We held a raffle for a shotgun and brought the president of H4H to our hunt. Through the raffle tickets and the donations we raised over $3000.00 for H4H! Perhaps in a bit of mojo, the winner of the raffle is a retired Leo.

For all the hunters who attended, please accept my heartfelt thanks for all your support in all forms.

 

 

 

 

 

As you go through this 2011 holiday season, remember that you have the support of so many citizens who understand and appreciate what you do every day for all of us. Remember that there are groups out there like H4H who stand with you when you and your family need support. Sometimes a “thank you” to a LEO when they walk by in uniform is enough. When it is not enough, there are people like the hunters I was honored to see this weekend and the folks at H4H who will take “thank you” to a whole new level.

Stay safe.

Filed under Keeping it light, Media Relations, Politics & Current Affairs, Social Networking Tagged with , , , , , , ,

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

December 3, 2011 Leave a Comment

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

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

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

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

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

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

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

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

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

Stay safe.

 

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

May It Please The Court… The United States Supreme Court

November 27, 2011 2 Comments

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

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

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

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

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

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

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

Stay safe.

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

Public Safety Appreciation Week: A moment to pause and reflect

October 10, 2011 Leave a Comment

This week in Cobb County, Georgia, the Chamber of Commerce kicked off the 13th Annual Public Safety Appreciation Week. I stood as a proud sponsor for that event. I was also asked to speak at the 3rd Annual Paulding County Public Safety and Family Appreciation Festival on Saturday October 8, 2011. These events are amazing opportunities for the public to meet the people who protect them day and night. I would like to share the text of the speech I gave on Saturday. The words are from the heart and apply to all of our public safety heroes in every city, county and state in our country. Stay safe.

         I want to thank everyone for giving me the honor of speaking to you today. It is truly comforting to be in the presence of so many public safety professionals. We are here today for you just as you are all here for us, every day. Day and night, bitter cold or August heat, you answer the call of duty for strangers.

         In January 2008, I started a law firm dedicated to helping public safety personnel. My team looks out for you when you need protection, we advocate for you when your rights are threatened and we help you when you are injured on and off duty. We are committed to you because of who you are and what you do.

         Public safety. That is quite an interesting choice of words to describe EMS, fire and law enforcement officers. What are we to expect of “public safety” officials? Are they expected to prevent crime? Are they expected to eradicate fire risks? Are they expected to prevent anyone from choking? The United States Supreme Court in Deshaney v. Winnebago held that government officials are not insurers of public safety. However, public safety officials make the effort to educate and train the public to prevent the tragedies that are so devastating to our “public safety.”

         So if the law does not require these efforts, why do it? Why exert resources reaching out to the public you serve? If the law allows the fire department to stay in the station and wait for the next fire why teach fire prevention to school children? If the law allows EMS to wait to respond to the next person down, why teach CPR and first aid? If the law allows law enforcement officers to show up as soon as possible and investigate crime scenes, why work with businesses and schools to develop plans to keep adults and children safe? The answer is simple: you work to protect the public any way you can because you are driven to do so. Driven by a deep-seated belief that this is your community and the citizens of Paulding County deserve the best you have. You believe they deserve your “A game”; every shift, every day. For that, your community is truly grateful.  

         As certain as the sun comes up tomorrow, the people of Paulding County will live their lives and go about their business. They will go to church, school and work. They will return each evening and rest comfortably in their beds secure in their belief that when their lives turn upside down, when their children are in danger, when their safety is threatened by those who wish them harm, you will respond. You will respond quickly and bring to bear the skills and dedication you carry with you. We are here today because we understand that skill and dedication is only part of the equation. For in the heart of every one of you is a commitment to service above self that drives you to perform your assigned duties with honor and courage, even when in doing so you put your life on the line.

        Enjoy your day. Accept the well wishes of those in attendance today. Take a deep breath and take in the gratitude and community support you see all around you. Know that each and every day, as you fulfill your sworn duties, you are not alone. Behind you are the men, women and children of Paulding County. Look around you and you will know, without hesitation, that while you have their backs, they have yours.

         Thank you for inviting me here today. May God embrace each of you in His protective arms and keep you safe today and every day.

Filed under Media Relations, Politics & Current Affairs, Social Networking Tagged with , , , , , ,

The Price of Due Process: Having faith in the system

September 25, 2011 Leave a Comment

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

The Fifth Amendment to the United States Constitution reads:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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

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

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

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

Stay safe.

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

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

September 18, 2011 8 Comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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