The Legal Blog for Cops
June 4, 2012 Leave a comment
We represent Captain Nicole Mitchell, USAFR. She is a member of the Hurricane Hunters. She was fired from her job at The Weather Channnel and we filed suit due to their discrimination against her as a service member. Fox in Atlanta led with the story at 6. http://youtu.be/801XlL3zETc
April 17, 2012 Leave a comment
The identification of an expert in a criminal or civil case is a big deal. The witness is called to the witness stand and the lawyer calling the witness begins asking questions to let the jury know about the background, training and experience of the witness. The witness turns toward the jury and speaks about his education, work experience or training. The lawyer then formally tenders the expert to the court. “Your honor, I tender Mr. Smith as an expert in the area of….” If the court accepts the witness as an expert, he is able to educate the jury on matters “beyond the ken” or understanding and knowledge of the average juror. This is a critical point in any trial.
So who are these experts and where do they come from? What do they tell the jury? Does the jury listen and more importantly, why do we need them? In order to answer these questions, we need to look at the role of the jury and who sits on juries.
In a trial, the jury sits as the fact finder and the judge determines the law applicable to the case. This means that the jury will review and hear the evidence and decide what weight, if any, they will give to the documents, witnesses and other items introduced and allowed into evidence by the judge. In the course of the trial, there will be concepts that require specialized knowledge to understand. For example, in a DUI trial, a jury may need to learn about a prescription medication in order to determine if it would impair a person when driving a car. However, the law does not require jurors to have any specialized knowledge in order to sit on the jury. Jurors have varying degrees of education from grade school to graduate school. In order to ensure that the jurors can understand all of the evidence, the law allows experts to testify about these specialized issues to help the jury decide what weight, if any, to give the evidence.
Who Are These Experts?
Experts come from all areas of society. They are university professors, scientists, authors, licensed professionals and skilled workers who have been doing the same job for 20 years. It all depends upon the evidence at issue in the case. An expert in a vehicular homicide case may be an accident reconstructionist or an engineer to talk about the effects of poorly maintained brakes. An expert in a homicide trial may be a medical examiner or a DNA researcher. The standard for an expert varies slightly from state to state. The standard used in federal courts is found at Rule 702 in the Federal Rules of Evidence:
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
This standard is applied in all cases including allegations of excessive force by LEOs. In such a case, the law recognizes that the jury is not expected to know about use of force techniques, law enforcement tactics, options available to LEOs when faced with threats and law enforcement procedures. In these cases, the experts could be LEOs with many years of experience as trainers, street officers and administrators.
How Do Experts Form Their Opinions?
An expert can rely on just about anything to form and support his opinions. From incident reports to policies and procedures as well as research done by others, the expert is entitled and expected to consider all available information from every source. In fact, the expert is expected to consider the theories of the opposing side in a case and can be asked if those theories are viable.
Experts also form their opinions based upon their experience. For instance, a firearms expert may testify how LEOs are trained to use cover or reload during a firefight. A defensive tactics expert may testify about the ability of a LEO to effectively use hard hand techniques following a foot chase. Finally, a LEO with many years of street experience may testify about the reasonableness of handcuffing all suspects behind their backs.
Does The Court Really Need Experts and Does The Jury Really Listen To Them?
Like the expert who brings his experience to the trial, the jurors also bring their own experiences to the courtroom. This can be helpful or harmful. A juror who only knows about police procedure from watching T.J. Hooker will likely not make good decisions! Likewise, a juror who has watched every episode of CSI may not understand what she does not know about the realities of a criminal investigation. Therefore, the court and the jury need experts, especially in a case involving the use of force by LEOs.
In my experience, the jury usually pays attention to experts. Even if they do not completely agree with their opinions, they place a great deal of weight on the person who is brought to the court without an agenda and is accepted by the court as a person having specialized knowledge. They will listen to the expert. That is all you can ask because if they listen, they may learn enough to help them reach a decision.
Be Part Of The Solution
So here is the take away. First and foremost, tell everyone you know to consider jury duty an honor. It truly bothers me when I hear people talk about getting out of jury duty. We need reasonable people on juries. As a LEO, your career and freedom could depend upon it.
Second, consider acting as an expert. If you have information that would help a jury, if you can speak plainly with strangers to educate them about police procedure and if you enjoy the courtroom, you could be an effective expert.
Stay safe.
March 13, 2012 Leave a comment
Joe Friday’s iconic statement, “just the facts ma’am” has become the mantra all too often of Public Information Officers (PIO) and law enforcement administrators as well as the attorneys who defend law enforcement agencies. Many Law Enforcement Officers (LEOs) have finally come to grips with the fact that the media is everywhere. Twenty-five years ago, the “media” consisted of a mainstream media dominated by print, radio, and television. Today, with the advent of social media, cell phone cameras, and the near complete proliferation of surveillance, traffic and dash cams in law enforcement vehicles in the United States, there is no shortage of “media” available following a critical incident. The Federal Freedom of Information Act (FOIA) and similar state statutes, provide professional journalists, amateur journalists, and the average citizen with an endless supply of video, audio, and written documentation of the actions of LEOs all around the United States and the world.
I am a staunch defender of the First Amendment to the Constitution of the United States. In fact, you will find that I am a staunch defender of the entire Constitution including the Second Amendment, the Sixth Amendment and everything that provides due process to LEOs. So, you will not hear me rail about the evils of access to law enforcement files, videos, audiotaped interviews of suspects and the like. Instead, my perspective is a bit different. Due to the ease of access to this once sensitive law enforcement information, a PIO, law enforcement administrator, or LEO who steps into the arena of the media frenzy following a critical incident is in a coliseum with very different rules. Compared to 25 years ago, the number of spectators has increased and so has the number of lions. Just like any other game, when the rules change, you have to change the playbook. Hopefully, at the end of the post, you will consider these options as a groundwork for the future defense of a civil suit, criminal action, or just a publicity inquiry concerning the actions of your agency.
Use the Facts, the Facts Will Set You Free
Faced with a high publicity use of force incident, most departments put out a press release advising that the LEOs were forced to use a TASER® and start immediately defending the LEOs’ actions from the perspective of the media and lay people who know absolutely nothing about the laws surrounding the use of force. Phrases like, “the officers had no choice”, or “the matter is under investigation” just fuel the fire that the LEOs’ actions are subject to review and the department is concerned. Although some who teach public information classes agree that you should release very little information and state that an investigation is ongoing, I could not disagree more.
In the weeks following a critical incident, the LEOs’ actions will be questioned in the media as to why they did not have any video of the deployment of the TASER® or of their approach to the suspect. They will now be in a position of defending their actions because the agency did not proactively explain why the LEOs made sound tactical decisions. A video of a violent encounter with a LEO that is not put in context usually will be misinterpreted. So, I suggest this press release instead.
“This afternoon, two of our officers responded to a trouble unknown call at the Gas-mart on Elm Street. Due to the nature of the call, the officers were unable to park in front of the business and had to approach the call as a possible armed robbery in progress. As the officers got closer to the business, they were unable to see into the business due to signs and posters that were placed over the windows by the store owner. When the officers were able to make contact with one of the patrons, they learned that an individual was becoming violent inside the store. As they entered the store, they could tell that the employees were scared as were the two patrons inside the business.
When the officers first saw the subject, he was standing at a cooler of drinks with a quart-size glass bottle in each hand and was staring and mumbling. It was apparent that he had been consuming alcoholic beverages. The officers separated to minimize the impact of their presence on the subject and one of our most senior officers approached the subject. The officer, a 15-year veteran of the force with 10 years of experience training other officers, approached the subject in a calm voice attempting to calm him down and determine a way to defuse the situation. Unfortunately, the subject immediately attacked the officer striking him with his elbow. The suspect then began a violent effort to disarm the officer by trying to remove his firearm from the holster. The subject, who was over 6 feet 5 inches, and weighed over 300 pounds, was laying on top of the officer trying to jerk his weapon out of his holster. At times, he was picking the officer up off of the floor by his holster as the officer desperately tried to hold onto his firearm. Fortunately, the backup officer was able to deploy a TASER® and avoid the use of deadly force against the subject. Due to the subject’s continued struggling, and the fact that the subject was still laying on top of the first officer, the backup officer was required to deploy his TASER® more than once, in fact a total of four times, and the subject was placed into custody without any further injury. While this was a sad situation that a person with mental difficulties had a violent encounter with the police, fortunately higher levels of force were averted through the use of proper tactics, training, and the deployment of a less lethal device known as a Taser®.”
Aside from the obvious advantage for the publicity, this statement will be used and will assist you when someone is considering whether or not to sue your department. A department that proactively puts out the facts and states in plain terms what happened along with stating unapologetically exactly what level of force was used, why, and the injuries suffered by the suspect and the LEOs, I believe is less likely to face a suit and more able to defend a suit should one occur.
Other Rules Have Changed As Well
In 2011 and in the last five years, we saw multiple violent attacks on LEOs. LEOs can now see videos on the internet of other LEOs being attacked. Attacks against LEOs are becoming more prevalent and more violent. Although we can debate the reasons, I personally believe it is because we are letting more and more violent people out of prison and avoiding jail sentences in order to save money. Serial felony offenders are being let out of prison. In addition, LEOs are able to see the dash cameras from LEOs who were injured or lost their lives on You Tube and other multi-media websites. It is no wonder they are reacting more quickly. However, we can use these videos to our advantage. We use them in training, why not train the public? When the public understands just how quickly a situation on a traffic stop can become deadly, they will, in my experience, understand why the LEO used the level of force he chose. When they understand the level of force used and what the LEO perceived, the public overwhelmingly supports the use of force by LEOs. While there are some who will never support any use of force under any circumstances by LEOs, they are not your audience. You will never change their minds, and they will never understand.
So, here is the takeaway. When you have a critical incident, or any incident in which you know media attention will follow, put the information out there first. Use only the facts that you can back up, verify, and defend in court. Utilize websites such as Facebook, Twitter, and others to let the public know that you are acting in an open and honest manner. When you have a situation where a LEO is assaulted, say it. When you have a situation during which your LEOs were forced to use force, state the level of force used, the reason and the injury to the suspect, as well as the injury to the LEO. Do not apologize for less than lethal force. This is especially true when you have a department filled with highly trained, highly experienced, and professional LEOs. I do not apologize for any efforts that my clients have taken to protect themselves or the lives of another, and neither should you.
By changing the tide of negative publicity, negative inferences, and a general suspicion of the use of force, we educate the public and turn the conversations from what the LEOs did wrong to, “Why did the suspect take the actions he took” and “Fortunately, the LEO was able to avoid taking a life.” We all know that every physical confrontation with a LEO has the potential to turn deadly. When they do not turn deadly, we should take pride in that fact and let the public know. Further, consider every confrontation faced by a LEO, including every citizen contact, and the fact that the average LEO is involved in only one or two serious use of force or use of deadly force incidents in a 20-year career. Those statistics speak for themselves and help you defend the LEO as a person who judiciously uses force in a reasonable manner and not someone who uses excessive force.
Stay safe.
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.
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.
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.
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.
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.
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.
Lance LoRusso
Cop and Litigator
