Government Email For Private Use: “We have no secrets”

February 4, 2012 Leave a Comment

I’m dating myself here, but in 1972, Carly Simon released a song entitled, “We have no secrets.” The song and the album were very successful and the lyrics were quite timely. “We have no secrets. We tell each other everything.” Later in the song Ms. Simon sings the very powerful and wise line, “Sometimes I wish, often I wish that I never knew some of those secrets of yours.” While we all agree that email is an amazing way to communicate, many think that email is private like a letter placed into an envelope. Nothing could be further from the truth. This is especially true with email provided to you through a government entity.

Here is the scenario that I see most often. A LEO has an email address provided by her employer. She uses the email address often at work and becomes familiar with it. She gives this address out  to friends and family members as freely as she does with co-workers and other LEOs. Eventually, she begins using the government email address in association with Facebook, Twitter, a personal blog or as contact information for a private group such as the Fraternal Order of Police. Eventually, this email address is used constantly for non-LE business. One day, the agency confronts the LEO with an email she sent to a friend. Her chain of command reminds her of the agency’s policy regarding private use of government resources and making disparaging remarks that undermine the effectiveness of the agency. Suddenly, a complaint is born, a LEO is facing discipline and a rush of fear comes over the LEO with an aching thought, “Can they look at all of the email I sent?” Short answer: Yes.

Email is hosted or maintained by the entity that owns the domain name. This is the part of the email after the “@” symbol. With very few exceptions, you should expect that you have no expectation of privacy in any email you send or receive through your agency email. That’s right. No subpoena necessary. You can also bet that the attorney suing you or your department will want any email relevant to the case and he will get it.

However, privacy is not your only concern. Many agency policies consider personal use of email the same as using any other government resource for personal use. Would you take your patrol car on a family trip to Wally World? Would you think it is acceptable use stamps and envelopes from your agency to send out payments to your cable and power company? If the answer if “no” then your understand why you should not use your agency email for private purposes.

Have you heard enough yet? Well, there’s more. While you may be able to control the emails you send, you have no control over the email sent to you! Imagine the sheer joy of explaining to your chain of command how your friend from high school through it was cool to send you an email with a nude photo attached. That would truly be a memorable experience. In truth, you have no control over the email people send to you. Including attachments that contain destructive viruses.

Finally, any correspondence with your attorney is protected by privilege. This privilege can be placed in jeopardy if you correspond through your agency email. I routinely call people who send me legal questions over their agency email and tell them to provide a private email address.

Fortunately, there are a number of simple and cheap solutions. You can get a gmail account here, a Yahoo account here, or get an email account from your cable company. Many organizations will allow you to get an email account through them. For example, any FOP member can get an email account with “fop.net” as a domain name. My FOP email is lance@fop.net. You can get an FOP email address here. If you are not a member, you can take care of that as well!

So, no more excuses! Get a personal email and use it for personal matters. Whether you are a” technogeek” or a dinosaur, you cannot wait any longer to take care of this. After all, Carly Simon was right about one thing. There are few secrets any more especially in our age of technology. Preserve the privacy you have.

Stay safe.

Filed under Education, Social Networking, Uncategorized 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

New Case From The USSC:Search Warrant Required Prior to Application of a GPS device to a vehicle!

January 23, 2012 Leave a Comment

The United States Supreme Court released an opinion today holding that LEOs are required to have a valid search warrant prior to installing a GPS tracking device on a vehicle. Read the opinion here. Look for a post on this case in the near future.

Stay safe.

Filed under 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 , , , , , , , , , , , , , , ,

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 , , , , , , , , , , ,

The Role of the Media After a Critical Incident

May 29, 2011 1 Comment

“Here now the news.” The phrase made famous by Roger Grimsby and later parodied by Chevy Chase leads me to the topic of this post. The role of the media is as entrenched in our country as freedom itself. I personally believe the order of the Constitutional Amendments found in the Bill of Rights is rational not random. The freedom of the press is guaranteed on the same level as freedom of religion and the freedom to petition the government for a redress of grievance. Therefore, no one should be surprised that journalists take their profession and their roles in society seriously.

So, what is the role of the media after a critical incident? First, you should expect inquiries into the facts. That is the core function of the media; inquire. Second, it is reasonable to expect resistance to any perceived or actual restrictions on information. That is the second function of the media; be steadfast in the pursuit of the facts. Third, expect skepticism. That is another function of the media; stay objective and avoid bias. In short, the media will cover the incident, the investigations, the outcome of the investigations and the reaction of the public. Their involvement will typically begin with a response to the scene.

In my experience, most members of the media are professionals. They take their jobs seriously and pride themselves on the legacy of a profession practiced by many patriots throughout history. This is not to say that I have never disagreed or had spirited discussions with members of the media. Dissent and disagreement are the cornerstones of human interaction, professional relationships and democracy. LEOs certainly rely on the media to assist with calls for victims and witnesses as well as proactive efforts to prevent crime. In turn, the media relies upon LEOs to help them investigate and report.

In 2011, the most important thing to remember is the role of the “informal media,” which is my name for the unofficial “reporting” on the Internet. The concern for LEOs and agencies is the speed with which the informal media will respond with postings about a critical incident. Unlike the media professionals described above, often this “reporting” is no more than the promulgation of conjecture and bias in furtherance of an agenda. I could link to some of this content, but to do so would increase the likelihood that it will appear more often in search engines. The fairly new practice of allowing people to anonymously comment on news stories contained on legitimate internet news sites has, in my humble opinion, led to a blurring of the lines between the media professionals and people advancing an agenda. I challenge you to search a few recent officer involved shootings and you will see examples of this phenomenon.

So how can LEOs and agencies prepare for the response of the media, formal and informal, to a critical incident? First, recognize that you must prepare for and respond to media inquiries. Second, your response must include the internet such as posting press releases on Facebook, your department’s webpage and Twitter. You cannot afford to let those with ulterior motives to get ahead of you in cyberspace.

For the LEOs involved in critical incidents, I encourage my clients to avoid the news coverage and the informal media. You already know what happened, you were there. The inaccuracies, whether honest or intentional, will only serve to upset you as you work through the incident. Focus instead on your family and your role in the investigations of that incident.

In the end analysis, I would never replace the free press in the United States. It is one of the hallmarks of our democracy. The more we are able to recognize the separate and distinct roles of the media and law enforcement, the more we can safeguard the integrity of our legal system. My biggest fear is that the informal media, aided albeit unwillingly by anonymous comment postings to legitimate news stories, will one day compromise the ability of our legal system to analyze the use of force by LEOs. After all, grand juries and trial juries are composed of citizens who read both the well-investigated news stories and off the cuff drivel often in the same sitting.

As I finish this post, my thoughts are with the Bexar County Sheriff’s Office and the family and friends of Sergeant Kenneth Vann. Sergeant Vann was murdered in the early morning hours of May 28, 2011 as he sat at a red light in his patrol car. The streets are more violent for LEOs today. While the law surrounding the use of deadly force has not changed, the perception of any reasonable LEO has changed. LEOs have less time to react today than they did in the past and the likelihood that a person would actually try to kill a LEO has increased exponentially in the past few years. The situation will not get any better as counties and states close budget shortfalls with early release programs. California, Kentucky, Virginia, Connecticut Alabama, Arizona and others have discussed or implemented such measures in the past two years. I hope that the media professionals will include these facts in their reports.

Each critical incident and each use of force, especially deadly force, must be examined separately. While law enforcement agencies have the responsibility to disseminate information to the media and the public, the media professionals have the responsibility to fairly report all of the facts. When both professions meet their obligations, the public wins.

Stay safe.

Filed under Media Relations, Officer Safety, Politics & Current Affairs, Social Networking, Uncategorized, Use of Force Tagged with , , , , , , , ,

The Lighter Side of the Law

February 7, 2011 Leave a Comment

The posts have been a bit “heavy” lately so I thought I would keep it light this week. I spent some time in court last week and also sat through a bunch of depositions. I am currently waiting to board a flight from Moline, Illinois which by the way is in dire need of an outdoor heating system!! Can’t John Deere handle that?

Many people ask me about court and litigation. It truly is a lot of fun and has many “special” moments. Since I do not chase cars anymore, and it’s too cold to hunt anything, I learned long ago that I need to get my adrenaline rushes when I can and enjoy every one. That explains so many years of PPC and IPSC competition! While nowhere near the thrill of a chase, litigation provides me with some adrenaline and a bunch of entertainment!

For example, in court or on deposition, people seem to have this amazing ability to live in their own little worlds and pretend that their actions, and their mode of dress, are known only to them! Really!?! You thought the pictures you posted on Facebook would NOT show up at your deposition?!?! You thought showing up to superior court in a t-shirt and jeans when you walked the cuffs down to the proper length was a great idea?!?!  Or my personal favorite from this past week, you thought bringing your girlfriend to court while trying to negotiate the contempt action filed by your ex-wife would give you an advantage?!?!?! You just cannot make this stuff up!

The LEOs who have known me for years sometimes ask me if I miss it. Well the answer is yes; except when I see someone directing traffic in the rain. I definitely do NOT miss that! I do miss the crazy calls, the dispatches that no one will believe, like a woman who heard a snake in her basement, and sitting in a parking lot after a hot call winding down telling jokes.

Alas, unless Al Qaeda takes over the Marietta Square and I get called in to stand a post, I will be relegated to arguing cases in court, taking depositions and watching the public life of the lower 2% of society’s bell curve from afar. Fortunately, I love the practice of law. It is a great profession, and I get to look after and help LEOs like I never could have done on the street.

However, if you see me in court, on the road or out socially, feel free to share your latest experience with a tin foil hat wearing complainant, the guy who dropped his wallet climbing through a window during a burglary or the guy who stopped to ask you directions during a felony traffic stop. Who knows! I may see one of them in a deposition soon!

Stay safe!

Filed under Keeping it light, Uncategorized Tagged with , , , , , , ,

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