Category Archives: Police Misconduct

SCOTUS Eliminates the “Provocation Rule”

Image result for police raid house shoot open fire

In  County of Los Angeles v. Mendez, the U.S. Supreme Court held that the Fourth Amendment provides no basis to uphold the Ninth Circuit’s “provocation rule,” a doctrine which makes officers liable for injuries caused by their use of force.

BACKGROUND FACTS

The Los Angeles County Sheriff’s Department received word from a confidential informant that a potentially armed and dangerous parolee-at-large had been seen at a certain residence. While other officers searched the main house, Deputies Conley and Pederson searched the back of the property where, unbeknownst to the deputies, respondents Mendez and Garcia were napping inside a shack where they lived.

Without a search warrant and without announcing their presence, the deputies opened the door of the shack. Mendez rose from the bed, holding a BB gun that he used to kill pests. Deputy Conley yelled, “Gun!” and the deputies immediately opened fire, shooting Mendez and Garcia multiple times.

Officers did not find the parolee in the shack or elsewhere on the property.

PLAINTIFF’S CIVIL RIGHTS CLAIMS

For those who don’t know, the “Provocation Rule” holds that if a police officer recklessly promotes a potentially violent confrontation with a Fourth Amendment violation, the officer is liable for any injury caused by a subsequent use of force that results from that confrontation, even if the use of force itself was reasonable.

Armed with the “Provocation Rule,” Mendez and Garcia sued the police deputies and the County under 42 U. S. C. §1983. They advanced three Fourth Amendment claims: a warrantless entry claim, a knock-and-announce claim, and an excessive force claim. On the first two claims, the Federal District Court awarded Mendez and Garcia nominal damages. On the excessive force claim, the court found that the deputies’ use of force was reasonable, but held them liable nonetheless under the Ninth Circuit’s provocation rule, which makes an officer’s otherwise reasonable use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent confrontation” and (2) “the provocation is an independent Fourth Amendment violation,.

The Government appealed the case to the Ninth Circuit Court of Appeals. On appeal, the Ninth Circuit held that the officers were entitled to qualified immunity on the knock-and-announce claim and that the warrantless entry violated clearly established law. It also affirmed the District Court’s application of the provocation rule, and held, in the alternative, that basic notions of proximate cause would support liability even without the provocation rule.

The Government appealed the Ninth Circuit’s ruling to the U.S Supreme Court.

COURT’S ANALYSIS

In short, the U.S. Supreme Court held that the Fourth Amendment offers no basis for the Ninth Circuit’s “provocation rule.” It reasoned that the rule is incompatible with this Court’s excessive force jurisprudence, which sets forth a settled and exclusive framework for analyzing whether the force used in making a seizure complies with the Fourth Amendment. The Court reasoned that the legal issue is “whether the totality of the circumstances justifies a particular sort of search or seizure.” Tennessee v. Garner.

The Court reasoned that the provocation rule instructs courts to look back in time to see if a different Fourth Amendment violation was somehow tied to the eventual use of force. Problematically, this approach that mistakenly conflates distinct Fourth Amendment claims. To the extent that a plaintiff has other Fourth Amendment claims, they should be analyzed separately.

“The Ninth Circuit attempts to cabin the provocation rule by defining a two-prong test: First, the separate constitutional violation must “create a situation which led to” the use of force; and second, the separate constitutional violation must be committed recklessly or intentionally,” said the Court.

The U.S. Supreme thought this approach was mistaken. First, the rule relies on a vague causal standard. Second, while the reasonableness of a search or seizure is almost always based on objective factors, the provocation rule looks to the subjective intent of the officers who carried out the seizure:

“There is no need to distort the excessive force inquiry in this way in order to hold law enforcement officers liable for the foreseeable consequences of all their constitutional torts.”

Plaintiffs can, subject to qualified immunity, generally recover damages that are proximately caused by any Fourth Amendment violation. Here, reasoned the Court, if respondents cannot recover on their excessive force claim, that will not stop them from recovering for injuries proximately caused by the warrantless entry.

“The Ninth Circuit’s proximate-cause holding is similarly tainted,” said the Court. Its focuses solely on the risks foreseeably associated with the failure to knock and announce—the claim on which the court concluded that the deputies had qualified immunity—rather than the warrantless entry.

My opinion? I concur with  blogger Radley Balko’s insights on this. He blogs about criminal justice, the drug war and civil liberties for The Washington Post, and says the following:

“The cops, on the other hand, engaged in some incredibly sloppy policing that nearly got someone killed. They violated the Mendezes’ Fourth Amendment rights not once, but twice. Then they filled the couple with bullets after they mistook Angel Mendez’s reach for his pellet gun as a threat. Angel Mendez was shot five times, and lost his right leg below the knee. Jennifer Mendez was shot in the back. That was 6½ years ago. They still haven’t seen a dime. And after Tuesday’s ruling, it seems unlikely that they ever will.”

Exactly.

Trump On Crime.

Image result for trump and crime

Like it or not, Donald Trump won.

Criminal defense attorneys serving their clients must survey the aftermath and ponder how Mr. Trump’s administration approaches issues of criminal justice. What is Trump’s stance on the “War on Drugs?” How does his stance embrace the growing legalization of marijuana among the States? How does Mr. Trump view the Fourth Amendment’s protections against unlawful searches and seizures? How does Trump view the discord between police and communities of color? Will Trump’s administration seek the immediate deportation of illegal immigrants who commit crimes? How does he feel about the death penalty? These issues – and many others – affect many defendants facing criminal charges.

If the best predictor of future behavior is past behavior, we look no further than Mr. Trump’s comments over the years; especially his comments during his campaign.

THE WAR ON DRUGS: 1990 & 2015

In 1990, Trump argued that the only way to win the War on Drugs was to legalize drugs and use the tax revenue to fund drug education programs. As he put it, “You have to take the profit away from these drug czars.” In his 2000 book,The America We Deserve, he stated that he’d never tried drugs “of any kind.”

Fast-forward 25 years, and now Trump is opposed to legalization. “I say it’s bad,” he told the crowd at the Conservative Political Action Conference in June, in response to a question about Colorado’s legal weed. “Medical marijuana is another thing, but I think recreational marijuana is bad. And I feel strongly about that.” Regarding states’ rights, Trump said, “If they vote for it, they vote for it. But they’ve got a lot of problems going on right now, in Colorado. Some big problems. But I think medical marijuana, 100 percent.”

Source: On the Issues: Donald Trump on Drugs.

Apparently, Trump opposes recreational marijuana and endorses medical marijuana. Unfortunately, his stances can become problematic for states like Washington, Colorado and a handful of others which have already passed initiatives allowing its citizens to possess small amounts of marijuana for recreational purposes. Will Trump’s administration reverse these State initiatives? Will Trump’s administration violate federal court opinions which have slowly de-prioritized federal prosecutions of marijuana cases in states which have legalized marijuana? How will drug prosecutions and/or convictions under Trump’s administration affect citizens receiving federal benefits to include welfare, social security and financial aid?

Only time will tell.

CRIME, THE 4TH AMENDMENT AND THE RACIAL DIVIDE BETWEEN POLICE AND COMMUNITIES OF COLOR.

Trump’s recent comments at the First Presidential Debate at Hofstra University, Sept. 26, 2016, moderated by Lester Holt of NBC News gives telling insights on these issues.

Q: What should be done about crime?

TRUMP: “Stop and frisk worked very well in New York. It brought the crime rate way down. You take the gun away from criminals that shouldn’t be having it. We have gangs roaming the street. And in many cases, they’re illegal immigrants. And they have guns. And they shoot people. And we have to be very vigilant. Right now, our police, in many cases, are afraid to do anything. We have to protect our inner cities, because African-American communities are being decimated by crime.”

Q: “Stop-and-frisk was ruled unconstitutional in New York, because it largely singled out black and Hispanic young men.”

TRUMP: “No, you’re wrong. Our new mayor refused to go forward with the case. They would have won on appeal. There are many places where it’s allowed.”

Q: “The argument is that it’s a form of racial profiling.”

TRUMP: “No, the argument is that we have to take the guns away from bad people that shouldn’t have them. You have to have stop-and-frisk.”

Some background information and “fact-checking” is necessary to understand this discussion.

Recently, in Floyd v. City of New York, U.S. District Court Judge Shira A. Scheindlin ruled that New York City police violated the U.S. Constitution in the way that it carried out its stop-and-frisk program, calling it “a form of racial profiling” of young black and Hispanic men. Apparently, there were 4.4 million stops made by New York City police between January 2004 and June 2012, and 83 percent of them were made of blacks and Hispanics — even though those racial groups represented 52 percent of the city’s population in 2010.

During trial, Judge Scheindlin found that 14 of the 19 stops constituted an unconstitutional stop or unconstitutional frisk. Ultimately, Judge Scheindin found the NYPD’s execution of its stop and frisk policy was unconstitutional.

My opinion?  Sure, most would agree we want guns and criminals off our streets. However, if stop and frisk policies involve systematically targeting certain racial groups, then these policies are simply unlawful. Period. Given his statements during the debates, I fear Trump’s administration may create, endorse and execute criminal justice policies which ultimately violate Fourth Amendment protections against unlawful searches and seizure.

2. How do you heal the racial divide?

TRUMP: “We need law and order. If we don’t have it, we’re not going to have a country. I just got today the endorsement of the Fraternal Order of Police. We have endorsements from almost every police group, a large percentage of them in the US. We have a situation where we have our inner cities, African- Americans, Hispanics are living in he’ll because it’s so dangerous. You walk down the street, you get shot.”

3. Do you see a crisis in the US of white police officers shooting unarmed blacks?

TRUMP: “It’s a massive crisis. It’s a double crisis. I look at these things, I see them on television. And some horrible mistakes are made. But at the same time, we have to give power back to the police because crime is rampant. I believe very strongly that we need police. Cities need strong police protection. But officers’ jobs are being taken away from them. And there’s no question about it, there is turmoil in our country on both sides.”

4. Do you understand why African Americans don’t trust the police right now?

TRUMP: “Well, I can certainly see it when I see what’s going on. But at the same time, we have to give power back to the police because we have to have law and order. And you’re always going to have mistakes made. And you’re always going to have bad apples. But you can’t let that stop the fact that police have to regain control of this tremendous crime wave that’s hitting the US.”

THE SUPREME COURT

According to Politico Magazine, Trump will probably pick ultra-conservative judges to fill anticipated vacancies in the United States Supreme Court. In an article titled, “How President Trump Could Reshape the Supreme Court – and the Country,” reporter Jeffrey Rosen surmises that Trump’s lasting legacy could be his power to shape the Supreme Court.

Apparently, during the third presidential debate, Trump described the 21 judicial candidates he has identified:

“They will be pro-life. They will have a conservative bent. They will be protecting the Second Amendment. They are great scholars in all cases, and they’re people of tremendous respect. They will interpret the Constitution the way the Founders wanted it interpreted, and I believe that’s very important.”

Apparently, Trump’s judicial picks are pro-law enforcement on issues involving government searches and seizures. This bodes negatively for preserving Fourth Amendment protections against search and seizure.

Also, Trump vows to give more power to police to handle the racial divide between police and communities of color. My opinion? That’s similar to dousing a forest fire with gasoline. or allowing a fox to guard your henhouse. Police aren’t experts at policing themselves. What is needed are the reinforcement of police accountability policies as well as a substantial shift with the culture of today’s police departments.

Let’s be frank: the unjustified killing of citizens at the hands of police can no longer go unpunished, especially in the face of indisputable video evidence. In those cases, police must be held accountable for the crimes they commit against the citizens they are sworn to serve and protect. It’s the only way to rebuild trust between police and the communities of color.

Equally important, we need policies which increase training on de-escalation techniques and decrease police militarization models which involves the use of military equipment and tactics by law enforcement officers. This includes decreasing the use of armored personnel carriers, assault rifles, submachine guns, flashbang grenadesgrenade launcherssniper rifles, and Special Weapons and Tactics (SWAT) teams if more reasonable alternatives are possible.

THE DEATH PENALTY

Put simply, Mr. Trump as a staunch advocate of the death penalty.

“A life is a life, and if you criminally take an innocent life you’d better be prepared to forfeit your own. My only complaint is that lethal injection is too comfortable a way to go.”

“I can’t believe that executing criminals doesn’t have a deterrent effect . . . Young male murderers, we are constantly told, are led astray by violent music and violent movies. Fair enough. I believe that people are affected by what they read, see, hear, and experience. Only a fool believes otherwise. So you can’t say on one hand that a kid is affected by music and movies and then turn around and say he is absolutely not affected when he turns on the evening news and sees that a criminal has gone to the chair for killing a child. Obviously, capital punishment isn’t going to deter everyone. But how can it not put the fear of death into many would-be killers?”

Source: The America We Deserve, by Donald Trump, pp. 102-104, July 2, 2000.

JAILING AND DEPORTATION OF UNDOCUMENTED IMMIGRANTS.

According to the Huffington Post, Trump vows to immediately deport or imprison up to 3 million undocumented immigrants.  Trump said he would launch what could be the largest mass deportation effort in modern history, vowing to immediately deport a number of people comparable to the record-setting figure that President Barack Obama carried out over two terms in office.

This should come as no surprise. According to a recent article from the Washington Post, Trump’s proposal calls for the deportation of undocumented immigrants who have committed violent crimes. Trump said he would push for two new laws aimed at punishing criminal aliens convicted of illegal reentry and removing “criminal immigrants and terrorists,” including previously deported unauthorized immigrants. He said he would name these laws after victims killed by people in the United States illegally.

Although Trump’s removal of undocumented immigrants at this pace is apparently limited to convicted felons, his enthusiasm for removals suggests that overall deportations will likely rise when he takes office, after declining sharply last year.

Clearly, Trump’s presidency shall affect our nation’s approach to crime and punishment. Consequently, it’s imperative to hire defense counsel who is competent handling drug charges, death penalty crimes, violent crime, racial injustice and immigration issues. Today’s defense counsel must stay abreast of today’s ever-changing political landscape.

I-873: Police Accountability

Image result for I-873: Police Accountability

We’ve all heard it. Killings by police in the line of duty have surged in Washington and the United States over the past decade, according to a Seattle Times analysis. During that period, only one police officer has been criminally charged in state courts with the illegal use of deadly force on the job.

In fact, that case is the only one to be brought in the three decades since Washington enacted the nation’s most restrictive law on holding officers accountable for the unjustified use of deadly force.

Not This Time! and Washington For Good Policing (W4GP) are a grass-roots movements that evolved from the  killing by the Seattle Police Department of Mr. Che Andre Taylor on February 21, 2016. The campaigns  are working to collect 350,000 signatures to put Initiative 873 in front of Washington State’s legislature in January 2017.

This is the first legislative initiative of its kind in the nation that would put forth police accountability. If passed, the legislative initiative may be a model for other states.

The initiative appears to be gaining momentum. It is endorsed by the Seattle Police Department, the ACLU of Washington, numerous state senators, Seattle Mayor Ed Murray, Seattle City Attorney Pete Holmes, Kshama Sawant and Lorena Gonzalez of the Seattle City Council, Lisa Duggaard of the Public Defenders Association, Jim Cooper and Jessica Bateman of the Olympia City Council.

Also, the following newspapers and media outlets have discussed and encouraged the passage of the bill:

It’s refreshing that I-873 has such a broad range of support, especially from the Seattle Police Department. Let’s move forward with the hope that holding officers accountable for unjustified shootings increases respect for police and professionalism within police ranks. For sure, it’s step in the right direction.

Deadly Force Not Justified.

Image result for EXCESSIVE DEADLY FORCE

In A.K.H. v. City of Tustin, the Ninth Circuit Court of Appeals held the government could not justify a police officer’s use of deadly force during the officer’s attempted investigatory stop of Mr. Herrera.

FACTS & PROCEDURAL HISTORY.

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging that Villarreal used excessive force against Herrera in violation of the Fourth Amendment. Villarreal moved for summary judgment based on qualified immunity, which would have effectively dismissed the lawsuit against him. However, the federal district court denied the Officer’s motion.

Officer Villarreal brought an interlocutory appeal to the Ninth Circuit Court of Appeals. He argued that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity.

THE ISSUES.

The Ninth Circuit reasoned it must ask two questions to determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Second, if Villarreal used excessive force, did he violate a clearly established right?

THE COURT’S ANALYSIS.

Quoting Tennessee v. Garner, the Ninth Circuit reasoned that Deadly Force is permissible only if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

Here, the Ninth Circuit found Officer Herrera used excessive force in violation of Mr. Herrera’s Fourth Amendment rights. The Court reasoned that (1) the crime at issue was a domestic dispute that had ended before the police became involved; (2) the deceased did not pose an immediate threat to the safety of the officers or others, as the officer did not believe the deceased was armed and the officer did not see a weapon; (3) although the deceased did not comply with the officer’s commands to remove his hand from his sweatshirt pocket, he did not attempt to flee; and (4) the officer escalated to deadly force approximately 1 second after issuing the command to the deceased to remove his hand from his pocket. “Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.”

CONCLUSION.

In its conclusion, the Ninth Circuit said the following:

“It has long been clear that a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.”

My opinion? Great decision. Straightforward, direct, constitutionally sound and accurate. I’m happy the Ninth Circuit saw this case for what it was.

Kansas Cops Can’t Stop Colorado Drivers Just Because they Suspect Marijuana Possession.

Image result for marijuana 10th circuit search marijuana

In Vasquez v. Lewis & Jimerson, the 10th Circuit Court of Appeals reinstated a lawsuit filed by a Colorado motorist against two Kansas Highway Patrol officers who pulled him over and searched his vehicle for marijuana as he was driving alone at night through Kansas on his way to Maryland.

The KHP officers, Richard Jimerson and Dax Lewis, stopped Vasquez when they could not read the temporary tag taped to the inside of the car’s tinted rear window. The officers believed they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a “known drug corridor,” in a recently purchased, older-model car. They said he also seemed nervous.

On February 28, 2012, Vasquez filed this lawsuit against the Officers under 42 U.S.C. § 1983 – which allows citizens to sue the government for violating Constitutional Rights – and argued that the officers violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. At first, his lawsuit was dismissed. He took his lawsuit up on appeal.

The 10th Circuit found the officers violated Vasquez’s Fourth Amendment rights in searching his car without his consent. Nothing illegal was found. He had nothing more than an out-of-state license plate from Colorado, a state that has legalized marijuana. The Court found the officers violated Vasquez’s rights in searching his car:

“Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” the ruling states.”

My opinion? Good decision. And it makes sense.  Twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law.  Our federal circuit courts are simply reading the writing on the wall.

Indeed, it even appears our federal courts are actually leading the charge toward the national legalization of marijuana. In my blog post titled, 9th Circuit Court of Appeals Bans Pot Prosecutions, I discuss recent news that the 9th Circuit prevented the U.S. Department of Justice from prosecuting pot charges if State laws allow for its legal possession.

Times are changing . . .

Bellingham Police Department Body Cameras Now Mandatory

A news article by Samantha Wohlfiel from of the Bellingham Herald reports that starting this July, Bellingham Police Department (BPD) will require all uniformed patrol officers to wear and use body cameras.

In 2014, the BPD started a voluntary program, allowing officers to use a body camera if they were willing. Now, Police Chief Cliff Cook has decided all uniformed patrol officers will need to wear the cameras while on duty:

“I think the original pilot and then the past year and a half … has shown us that having the videos is not only beneficial in cases of prosecution of individuals for crimes, as evidence of the actions of our officers, especially when they’re appropriate . . .  It also generally helps us resolve disputes or disagreements about what may have transpired between an officer and a citizen much more quickly and in a more definitive way.”

~Police Chief Cliff Cook

Initially, 18 officers volunteered for Bellingham’s program, and currently 34 officers are using the cameras, Cook said. He also mentioned that his police officers have noted that people often change their behavior for the better when they’re told they’re being filmed.

One of the main concerns for officers and community members has been privacy, Cook said:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

Basically, the “policy” requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

The department has a mix of cameras, some that are clipped on a lapel, others that are worn on glasses, but both have easily been knocked off in situations where officers were restraining someone, Cook said, so the department may shift toward other models.

Between 2014 and 2016, the total program cost has been $315,250, which includes things such as all hardware (the cameras, clips, glasses they sit on, etc.), software and docking stations, Cook told the council.

According to the article, the projected costs moving forward are about $35,000 to $56,000 per year each of the next two years for renewed data storage management.

Another concern was, of course, privacy:

“One of the concerns we talked about was the overriding concern about creating video of individuals in pretty personally trying situations that involve personal privacy, such as mental illness, or a domestic violence call in a private residence, or interviewing the victim of a crime. So there are provisions within the policy where officers are given discretion on whether they want to turn that camera on or not.”

~Police Chief Cliff Cook

The current policy requires that officers turn on the cameras for any enforcement activity, an arrest, use of force or where they believe there will be the need to use force.

My opinion? This is a step in the right direction. Body cameras make everyone behave better. They also catch evidence of what really transpired. Good move, BPD.

Frisks & DV Investigations

 

In Thomas v. Dillard, the 9th Circuit Court of Appeals held that although the domestic violence (DV) nature of a police investigation is relevant in assessing whether a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion to search.

Palomar College Police Officer Christopher Dillard responded to a call to investigate a man pushing a woman in a public area on the college’s campus. There he found Correll Thomas, a student at the college who had been hanging out with and kissing his girlfriend, Amy Husky. Although Thomas was unarmed and in fact had committed no act of domestic violence, Dillard demanded Thomas submit to a search for weapons, believing police officers are free to conduct a Terry frisk whenever they are investigating a potential “domestic violence” incident, regardless of the specific circumstances of the call or the facts encountered at the scene. When Thomas refused to be searched, Dillard tased him. Thomas sued Dillard under 42 U.S.C. § 1983, asserting unlawful seizure and excessive force under the Fourth Amendment.

The 9th Circuit held that although the domestic violence nature of a police investigation is a relevant consideration in assessing whether there is reason to believe a suspect is armed and dangerous, it is not alone sufficient to establish reasonable suspicion:

“Because domestic violence encompasses too many criminal acts of varying degrees of seriousness for an officer to form reasonable suspicion a suspect is armed from that label alone, we hold domestic violence is not a crime such as bank robbery or trafficking in large quantities of drugs that is, as a general matter, likely to involve the use of weapons.”

Therefore, officer Dillard violated plaintiff’s Fourth Amendment rights against unreasonable seizure by detaining him for the purpose of performing a Terry frisk.

However, the 9th Circuit held that Dillard was entitled to protection from the lawsuit under qualified immunity because it was not clearly established at the time that the initial demand for a frisk was unlawful. The court further held that it was not clearly established at the time that continuing to detain a noncompliant domestic violence suspect for the purpose of executing a frisk and tasing him when he refused to comply were unlawful.

My opinion? On the one hand, it’s refreshing that the Court understood the 4th Amendment issues presented in this case. Forcing a Terry search is unlawful under these circumstances. However, I disagree with the court that the officer was entitled to qualified immunity.

Red Light Cameras Arrive in Spring 2011

Here they come.

http://www.whatcomwatch.org/php/WW_open.php?id=1248

Beginning April 1, motorists in Bellingham can expect to see traffic cameras at six locations that have been pinpointed as areas with high instances of speeding in school zones or vehicles running red lights. The first 30 days is an amnesty period where violators will receive warning tickets.

When the City Council voted on the camera ordinance on Nov. 23, Councilman Seth Fleetwood was the lone opposer saying it was a “tough decision.” Ultimately, Fleetwood voted against it saying, “Do we want to live in a place with cameras?”  Fleetwood also disagreed with the City Council’s decision to cancel a public hearing on the subject.  The City Council never rescheduled the meeting.  He called the cancellation “A bad move.”

Based on traffic studies in conjunction with the Bellingham Public Works Department, the Police Department came up with four locations for traffic cameras to detect red-light running: westbound on Holly Street at N. Forest Street; northbound on Ellis Street at Lakeway Drive; northbound on Meridian Street and Telegraph Road; and southbound on Samish Way at 36th Street, near Sehome Village.

Here’s how they work: when a vehicle runs a red light or is detected speeding at one of the intersections, the video equipment is triggered capturing about 12 seconds of footage including the vehicle’s license plate. State law stipulates that the camera may take pictures only from the rear of the vehicle and never the faces of the driver or passengers. Electronic images may not be used for any other purpose and must not be retained longer than necessary to enforce the violation.

The cameras are always in operation but capturing footage only when they are triggered by a vehicle in violation.  Images and video are reviewed by ATS and then a Bellingham Police officer trained on the equipment affirms each violation. If you receive a notice, you can make the payment to ATS or appeal. If you were not the driver of the vehicle, you can contest it in writing.

A ticket generated by the traffic cameras is processed as a “civil infraction” similar to a parking ticket. This is different from a notice of infraction, which occurs when a police officer pulls over a driver accused of running a red light or speeding in a school zone. The notice of infraction is reported to the driver’s auto insurance; the civil infraction is not.

Studies conducted by ATS and other private companies show that camera installation creates safer streets. However, independent studies and those done by news organizations have shown an increase in accidents at intersections where cameras have been installed.

Meantime, at least seven states have banned red-light cameras, including Maine, Mississippi, Montana, Nevada, New Hampshire, West Virginia and Wisconsin, according to Anne Teigen, a transportation specialist at the National Conference of State Legislatures.

My opinion?  Bad idea.  I’ll tell you a secret: yellow lights are timed MUCH shorter at intersections with traffic cameras.  Quite literally, you must be already driving through the intersection when the light turns yellow.  Otherwise, you’ll be caught, pictured, and ticketed.  These traffic lights are not proven to decrease bad driving behavior.  They are, however, proven to increase revenue for municipalities.  THAT’S what this is about.

The Inquest: A Step Toward Justice or Just a Step?

EXCELLENT article from Jennifer Shaw of the ACLU discusses the King County inquest process.  Her recent posting to the ACLU blog discusses the King County inquest process. There is a lot of confusion about inquests:  what are they, who can participate, what findings can the jury make?  This short article addresses some of those questions.

http://aclu-wa.org/blog/inquest-step-toward-justice-or-just-step

Shaw approaches the subject by discussing how King County District Court will hold an inquest into the August 30, 2010, fatal shooting of First Nations carver John T. Williams by Seattle Police Officer Ian Birk.  She discusses how inquests are just one step in the complicated process that begins when a Seattle police officer fatally shoots someone.  “While each step can add some information to the picture, the process is cumbersome and not necessarily satisfying to the public,” says Shaw.

The first step after a fatal shooting is the criminal investigation.  The next step is to present the case to the Firearms Review Board.  The Board reviews the shooting to determine whether it was “justified.”  A shooting is considered “justified” if the officer followed the department’s policies and training when he used his weapon.  “That doesn’t mean the officer will be found guilty,” says Shaw.  “The board’s decision only means that the officer didn’t follow SPD policies or training.  Period.  It doesn’t declare that the officer committed a crime or would be found civilly liable or could even be fired.”

The next step is the inquest.  An inquest looks a lot like other trials, with a judge, a jury, lawyers, witnesses, court reporter, and observers.  But it is not.  After hearing evidence about “when, where and by what means” the person died, and listening to follow-up questions from both sides, the six-person jury simply answers a series of yes-and-no questions.  The jurors will not hear evidence about the officer’s training or whether he had alternatives to firing his gun. The attorneys cannot argue their opinions of the evidence to the jury.  They cannot ask the jury to find the officer guilty or not guilty. The jury is not permitted to answer whether any person or agency is civilly or criminally liable.

Shaw says the inquest process offers the public an interesting early view of the evidence, but the value of process is limited.  The jury cannot determine whether the officer acted reasonably or whether he had alternatives to using his weapon.  The jury cannot determine whether the department’s policies or the officer’s training was flawed.  Because of these limitations, the inquest process has been frequently criticized by surviving families and advocates, including the ACLU.

After the criminal investigation is complete, the Seattle Police Department’s Office of Professional Accountability will investigate the shooting to determine whether the officer violated department policies and may recommend discipline.  The OPA and the OPA Auditor may also recommend policy and training changes.

“Let’s hope that along the way justice is finally served and that significant changes are put in place so that an incident like this never happens again,” says Shaw.

My opinion?  I agree with Shaw’s concerns.  The inquest process needs significant retooling.  It violates the appearance of fairness to have a prosecutor – who shares a naturally symbiotic relationship with police officers – conduct an inquest.  It’s unfair that an attorney cannot represent the family of the victim at these proceedings.  It’s unfair that the jury cannot determine whether the officer acted reasonably or whether he had alternatives to using his weapon.   It’s unfair that the jury cannot determine whether the department’s policies or the officer’s training was flawed.  Clearly, the scope of the inquest must be broadened.  Otherwise, it will continue to be a mere formality offering the mere appearance of justice.

Study Shows How the Innocent Confess to Crimes

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

http://www.nytimes.com/2010/09/14/us/14confess.html

An article in the Stanford Law Review written by Professor Garrett of the Virginia School of Law draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.   Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

My opinion?  To defense lawyers, the new research is eye opening. In the past, if somebody confessed, that was the end.  You couldn’t imagine going forward.  Although the confession is heresay, which is generally an out-of-court styatement made to prove the truth of the matter asserted, there are over 20 exceptions to the hearsay rule.  Bottom line, a judge typically allows juries to hear confessions.

This new research calls upon defense attorneys to investigate the conditions under which the confession took place.  Was the confession recorded?  How long was it?  Was the defendant rested?  Under the influence?  Did the defendant request an attorney?  Important questions, all of them . . .