Active Shooters, Home Invasions and “Protecting Our Children”

January 8, 2012 12 Comments

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

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

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

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

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

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

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

Stay safe.

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

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

December 31, 2011 Leave a Comment

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

Career Development

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

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

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

Education

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

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

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

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

Wills and other important papers

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

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

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

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

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

Insurance

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

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

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

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

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

Looking forward to the future!

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

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

Stay safe.

 

 

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

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

December 3, 2011 Leave a Comment

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

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

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

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

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

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

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

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

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

Stay safe.

 

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

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

October 1, 2011 Leave a Comment

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

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

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

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

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

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

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

Stay safe.

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

The Price of Due Process: Having faith in the system

September 25, 2011 Leave a Comment

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

The Fifth Amendment to the United States Constitution reads:

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

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

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

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

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

Stay safe.

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

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

September 10, 2011 Leave a Comment

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

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

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

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

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

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

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

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

Stay safe.

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

Fontenot v. TASER International, Inc.-Case Study and Series

July 30, 2011 Leave a Comment

On July 19, 2011, a federal jury returned a $10,000,000 verdict against TASER International, Inc. I’ve received several calls and emails from LEOs about this verdict. Readers of Bluelinelawyer know that I believe in the TASER. This link will take you to one of my articles.

In my series, Lawsuits Against LEOs, I explored some of the realities and my insights about lawsuits involving LEOs. In this new series, I will use this case to walk you through a case involving use of force and products used by LEOs. It is not enough to look at this verdict and assume that TASER did anything wrong, that the LEOs involved were at fault or that law enforcement should walk away from TASER devices. The goal of this series is to inform and empower LEOs. In addition, it is my hope that you will learn to separate the hype and publicity of suits from the facts.

One of my law professors once said, “In every lawsuit, there are real people on both sides of the “v.”  I will pull the documents from this case, break down the case and the trial and follow the inevitable appeal. I will also discuss the role of the LEOs, the lawyers and the family of the suspect who died. As we go through the series, you will learn from “both sides of the ‘v’.”

You can read a news article about the verdict here. As a start to looking at both sides of the case, read through this article, written to promote the lawyers who sued TASER International, Inc. The official name of the case, known as the style, is Fontenot v. TASER International, Inc., United States District Court for the Western District of North Carolina, Charlotte Division, Case No. 3:10-CV-125 .

I look forward to this series and your comments and questions. Stay safe.

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

When 100 was a goal…

July 25, 2011 Leave a Comment

When I was a kid, 100 was a goal. $100 was a lot of money. A 100% on a test meant you could not have scored any higher. As I got older, I realized that $100 didn’t buy much. However, the goal of giving 100% never changed through my work as a LEO, graduate school and night law school. On July 20, 2011, the number 100 changed for me forever when we lost our 100th LEO this year. Clayton County Deputy Sheriff Richard “Rick” Jerome Daly was shot and killed that day at approximately 1500 hours. The shooter is listed as a 17 year old robbery suspect.

As with many other recent murders of LEOs, the suspect confronted Deputy Daly and fired multiple rounds. This is far removed from the past pattern of suspects who fired a few shots while fleeing or in an attempt to gain an opportunity to escape. The criminals are getting more violent, the confrontations with LEOs are more strategic and the attacks on LEOs seem more focused on the violence itself and not a means to avoid arrest.

There are lessons here for everyone. For the LEOs working the road and investigations, be more vigilant. For the trainers, adapt your lesson plans and scenarios to better prepare your troops. For the administrators, get ready to stand behind your troops when they use force to protect themselves. For the prosecutors, expect the LEOs on the street to take more precautions and be quicker to use force to protect themselves and others.

Let us all commit that next year, the year after and many more to come, we will never again reach the milestone of 100 LEOs killed in the line of duty.

Rest in peace, Deputy Daly. May God embrace and comfort your family, friends and fellow LEOs as you look down and watch over them.

Stay safe.

Filed under Officer Safety, Politics & Current Affairs, Use of Force Tagged with , , , , , , , , , , , , , ,

Attempting to Elude LEOs in a Vehicle is a Violent Crime-New Case Law from The United States Supreme Court!!

June 12, 2011 Leave a Comment

On Thursday , June 9, 2011, the United States Supreme Court released its opinion of  Sykes v. United States. The case settles a legal question that split federal circuits: Is the attempt to flee or elude the LEOs in a vehicle a violent crime? The short answer is “Yes.” You can read the entire opinion here.

The USSC examined this question in connection with a mandatory sentencing case. Put simply, Sykes claimed that fleeing from LEOs in a vehicle in Indiana was a felony, but not a violent felony. Sykes was fighting a mandatory sentencing under the federal Armed Career Criminal Act. The USSC examined the Indiana law at issue from one of Sykes’ prior convictions as well as the crime of fleeing or attempting to elude LEOs in a vehicle. In a great opinion, Justice Kennedy outlines why this crime constitutes a violent felony. I recommend that you take the time to read the opinion.

Like all appellate opinions, the USSC uses prior case law and public policy to explain the reason behind the opinion. The Sykes opinion explains the “evil” behind the crime of using a vehicle to flee or attempting to elude LEOs. “The attempt to elude capture is a direct challenge to an officer’s authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase. The felon’s conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide.”

Justice Kennedy goes on to cite to Scott v. Harris, a 2007 opinion that held that LEOs were not required to abandon efforts to chase a suspect in the hope that the suspect would stop fleeing and stated, “Confrontation with police is the expected result of vehicle flight. It places property and persons at serious risk of injury.”

I am certain that most if not all LEOs will cheer this opinion. Suspects who flee and attempt to elude LEOs in a vehicle place both the public and the LEOs in the chase at risk. Like many other opinions from the USSC, this case should confirm for you that the USSC will read your reports, watch your videos, pay attention to your trial testimony and maintain a practical approach to law enforcement in the United States. Keep this in mind when you start your next shift.

Stay safe.

 

 

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

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