Responding To The “Good Shoot”: Do I really need a lawyer?

April 10, 2012 1 Comment

It happens more often than not. A LEO is forced to use deadly force and the facts of the events leading to the shooting and the shooting itself clearly support a lawful, appropriate application of force. The criminal investigators interview witnesses who support the use of deadly force and the administrative investigation reveals no violation of departmental policy or state or federal law. This should not surprise anyone as LEOs in the United States are exposed to a tremendous number of training opportunities after they complete training academies. Judgmental use of deadly force classes and simulators as well as role play training leads to this result.

When I speak with and train LEOs, especially about the use of deadly force, I often hear this question, “Why would I need a lawyer if the use of deadly force was clearly justified?” This question strikes at the heart of the use of deadly force in our society. A shooting is a seizure. Every use of force by a LEO is an application of government authority. Therefore, every use of force and every shooting raises issues of constitutional import and courts justifiably take the LEO’s actions seriously.

Let’s look at the United States Supreme Court’s (USSC) opinion in Graham v. Connor, 490 US 386 (1989). This case sets out the standards applied to the use of force to control, arrest, and seize a person. In short, the USSC stated that the use of force by a LEO will be evaluated objectively according to the reasonableness test of the Fourth Amendment to the United States Constitution. However, the USSC also discussed the perceptions of the LEO in a use of force case. This analysis is critical to this blog post.

“The 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.
As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. []. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” 490 at 396-397. (emphasis added)
So, in this quote we see that courts will apply an objective test when evaluating the application of force. Courts are also instructed to take into account the “tense, uncertain and rapidly evolving” circumstances facing the LEO before, during and after the application of force. Finally, the USSC states clearly that the LEO’s intentions will not factor into the use of force analysis. In this quote we see, in my opinion, why it is critical for every LEO to consult an attorney after every OIS.
First, the facts that make up the analysis of “objective reasonableness” are gathered from many sources including the statements of the LEO who used deadly force. This means your statement to investigators is critical. You should have adequate time to rest, time to decompress and time to speak with an attorney to make certain that you can adequately relate the facts of the incident. Too often, LEOs I meet with after an OIS were ready to relate the “bare bones” facts just to get through the interview as quickly as possible if for no other reason, because they were nervous or had decided that the justification for the use of deadly force was obvious. It is critical that the LEO articulate exactly what happened before, during and after the use of deadly force. It is also critical for the LEO to relate any subjective perceptions that may not be available to the investigators. It is critical to interject into the investigation “the facts and circumstances confronting them” mentioned in Graham. The use of force is always a discretionary decision. You must make certain the investigators understand your perceptions as well as the facts.
Second, we have seen many times that the statements of the LEO are questioned and treated as suspect. In the case of Officer Rankin, he relayed the facts of what happened after a fatal OIS. Therefore, the only version of details available about the use of force were those provided by Officer Rankin. The problem in that case, as with so many others, is that the critics chose to disregard his statement as untrue. A grand jury, a civil trial and intense media scrutiny followed and he was cleared. However, there are those who will never believe his statements.
Third, the media, both formal and informal, will judge the use of force. Recently, for the second time in recent memory, a major news entity has admitted falsifying and altering the facts of an incident for the sake of manufacturing a better news story. There is no longer any comfort in believing that the work of reporters will eventually bring out the truth. While this was hopefully an isolated incident, LEOs are on their own to make certain that the investigations done by sworn investigators will gather and accurately document all facts after an OIS.

Put simply, it is important to protect yourself after an OIS. The opportunity to retain and involve counsel is often presented through a narrow window because the effectiveness of the attorney will be limited after some point. I have been involved in many situations representing LEOs where I was limited in the options available and some options were foreclosed completely due to the actions of the LEO before I was involved. In more than one situation, the LEO lost all rights to pursue justice and remedies in the courts. I discussed these situations in a previous post.

Finally, the attorney is able to objectively evaluate the facts of the incident and confirm the appropriateness of your actions. It seems obvious that you will likely believe that every use of deadly force was objectively reasonable because you made the decision. The role of the lawyer is to determine if facts outside your knowledge may create an alternative version of events. For instance, when you focused upon the suspect’s chest after looking at the gun in his hand, do you miss the fact that the suspect dropped the gun after the second of your five shots? Due to auditory exclusion, were you unable to hear the neighbors of a 15-year-old screaming that the gun in his hand was a toy? Due to low light conditions, were you unable to see that the object in the suspect’s hand was a cellphone and not a firearm? While these and other facts may not change the fact that the shooting was justified, an attorney is able to monitor these facts to ensure that your statement of your perceptions are accurate and support your decision to use deadly force.

The presence of an attorney at the scene of an OIS can benefit the LEO in many ways. While some LEOs are concerned about how this will appear to their chain of command, through proper education, this fear should be rendered moot. I know from experience. I have been with many agency heads who have told me I would be among the first people called to the scene if they were involved in an OIS. The lawful application of deadly force is never easy to watch on a video or listen to when the LEO relates what occurred. Remember that the use of deadly force is often subjected to scrutiny by individuals who are untrained and others who are suspicious of every OIS at the outset. An attorney is the only person on the scene of and during the investigation of an OIS who is focused solely on protecting the LEO. You are entitled to counsel. Protect yourself. Stay safe.

Filed under Active Shooters, Constitutional Law, Due Process, FOP & POST, LEO Litigation, Media Relations, Officer Involved Shooting, Officer Safety, Politics & Current Affairs, Social Networking, Use of Force, Use of Tasers

Lance LoRusso Becomes a Regular Contributing Author to lawenforcementtoday.com!

March 12, 2012 Leave a comment

I just submitted an article and am honored to become a regular contributing author to http://lawenforcementtoday.com. The website reaches over 160,000 people and LEOs from around the world! You can also follow the site on Twitter @LawEnforceToday and find them on Facebook! Stay safe.

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

Active Shooters, Home Invasions and “Protecting Our Children”

January 8, 2012 12 Comments

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

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

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

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

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

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

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

Stay safe.

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

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

December 31, 2011 Leave a comment

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

Career Development

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

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

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

Education

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

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

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

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

Wills and other important papers

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

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

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

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

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

Insurance

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

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

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

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

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

Looking forward to the future!

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

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

Stay safe.

 

 

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

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

December 3, 2011 Leave a comment

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

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

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

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

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

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

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

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

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

Stay safe.

 

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

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 , , , , , , , , , , , , , , ,

Lies, Damn Lies and Furloughs.

May 22, 2011 Leave a comment

Long before furloughs of LEOs and budget cutbacks in the face of increasing attacks on LEOs, Desiderius Erasmus famously said, “In the land of the blind, the one-eyed man is king.” Now I never met Mr. Erasmus, but I am pretty certain that during his lifetime there was little discussion of laying off LEOs, sending LEOs home several hours before their shift to save overtime and disbanding specialized units to supplement patrol functions. However, from what I have seen, his quote is spot on and provides a clear path for all of us who wear the badge or support those who do.

Violent attacks on LEOs are not a new phenomenon. The Northlake Bank robbery in 1967, Norco Bank robbery in 1980, and the active shooter at who murdered four Lakewood Police Officers in 2009 are stark reminders that LEOs have and always will be under attack. However, what is lost among the statistics of the shootings, the politics of the response and the speeches at memorial services is an inescapable truth of every violent attack on a LEO; it could have been worse. As bad as the loss of a LEO on a traffic stop or the murder of students on a campus will always be, each one could have been worse. More often than not, the carnage ceased because of an accelerated LEO response or pressure from the response.

I am about as politically conservative as you will find and that includes fiscal matters. However, when it comes to LEOs and all of public safety, furloughs are unacceptable. The great statesman Henry Clay once said, “Government is a trust, and the officers of the government are trustees; and both the trust and the trustees are created for the benefit of the people.” Citizens are not shareholders of the government. A shareholder looks to a dividend in the form of cash. A citizen should properly look to the government to provide a safe environment to live, work and raise a family. When a government furloughs LEOs, the obligations that come with the role of a trustee dictate that such actions must be a last resort.

So the LEOs and LEO supporters who read this should be prepared to raise a flag of caution whenever public safety resources are eliminated or reduced. Have on hand the statistics that prove your point. More than quoting national crime statistics, look at local response times, calls for service and crime reports. Meet with your government officials, attend public forums and speak out. Your speech is protected as long as you speak on a matter of public concern. The reduction in service that will result from furloughs will affect you as members of the community and you have a right to speak up.

When you hear or read inaccurate information, counter it quickly. You will find that the public wants to be informed about the facts and they overwhelmingly value your input. You are the subject matter experts on crime, law enforcement and officer safety. Do not allow anyone else to claim that title.

In many respects, we are living in a land of the blind. LEOs do their jobs with both eyes open and must do so to stay alive. You are the leaders in your communities. If your government officials are not going in the right direction, you can lead your citizens toward the light. They will follow your lead if you act professionally, stick to the facts and work within our political system to make your voice heard. You may not be king, but your efforts will save lives.

Stay safe.

Filed under Active Shooters, Education, LEO Litigation, Officer Safety, Politics & Current Affairs, Use of Force, Use of Tasers Tagged with , , , , , , , , , , , , , , , , , , , , ,

Cop Killer Wanted: Alive, if possible.

April 3, 2011 1 Comment

I receive calls and email from LEOs about a variety of topics. Some questions and discussions led to posts on www.bluelinelawyer.com. I also read other blogs, LEO-focused websites and the internet sources. This blog post discusses a topic that is sensitive, controversial and important for LEOs. It involves the extraordinary efforts of LEOs to arrest and prosecute cop killers.

Now I know my use of the term “cop killer” will no doubt have someone jumping up and down. However, in an age of dashcam videos, the prevalence of surveillance video and handheld video capability on cellphones, we are seeing a trend. Many shootings of LEOs are memorialized on video. The value of these videos is immeasurable including prosecution and training. For my purposes and based upon my beliefs and analysis, if a perpetrator is caught on video shooting a LEO, I will call him or her a cop killer. The camera does not lie.

With the increase of LEOs killed in violent attacks this year and last, many have asked why LEOs go to such extraordinary lengths to take cop killers into custody? In many instances, LEOs negotiate cop killers into surrendering when the perpetrator actually wants a violent confrontation. I thought this question deserved some contemplation especially for the civilian readers of this blog.

I did a little research and confirmed what I suspected: nearly every LEO oath of office includes a solemn oath to uphold the Constitution of the United States. But what does that mean in practice? Well, it is more than avoiding unreasonable searches and seizures. This portion of the LEO’s oath of office means that we guarantee due process to every person accused of any crime. Due process includes the obligation to effect every arrest using the least amount of force necessary. It also means affording the accused the benefit of the protections of our constitution including counsel, a speedy and public trial and the right to confront witnesses against him, to name but a few.

So why are so many cop killers taken into custody? The short answer is because many brave men and women risk their lives and bring to bear every resource to do so. The longer answer is that these efforts and resources are focused upon a principle that our LEO oath is more than a piece of paper we sign. It is a commitment to carry out the obligation that we voluntarily accepted: to uphold the Constitution of the United States. Like the use of force in every context, LEOs react to the level of force facing them. With so many perpetrators, LEOs across our country do everything possible to use the least amount of force necessary to perform their duties.

Take one look at the Officer Down Memorial Page and you will see that violent attacks on LEOs are increasing at an alarming rate. Readers of this blog will know my theory as to why: STOP LETTING VIOLENT CRIMINALS OUT OF PRISON! However, for every LEO killed in the line of duty, there was a group of LEOs who were willing to do everything possible to put their duty first and effect an arrest of the suspect.

The next time you hear or read about someone complaining how LEOs violate people’s rights you can stand proud and respond that when pushed to the limit of human emotion, LEOs consistently uphold the constitution and arrest those who assault and kill LEOs. Put this scenario before our critics, “You learn that your best friend is dead simply because he did his job. You have access to a firearm and control over media access to the location of the person who killed him. You know that your friend’s children will never see their parent again. You also know that the criminal justice system will move slowly to prosecute and punish the perpetrator. Would you have the courage and integrity to put your life in danger to provide the killer his day in court?” All across the United States, LEOs do so in every instance. Honor is doing what you must not what you desire.

Because LEOs uphold their oaths, because they risk their lives to guarantee constitutional protection to strangers and because they exercise discretion and commitment to duty before self every day, I will keep working to protect their due process rights. To the warriors who pursue cop killers, I say “Thank you for making us all proud.” When you meet those fallen officers again in heaven, they will join God in praising you. “Blessed are the peacemakers for they shall be called the children of God.” Matthew 5.

Stay safe.

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

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