Day: July 27, 2014

The Other Part of the Fifth Amendment

I wrote a breathtakingly brilliant paper on this topic in graduate school for an administrative law class.  Okay, I wrote a paper on this topic…

I wish that I could find that paper as I would just upload it here, but that was prior to my walking towards the Mac light, and at least three Windows based laptops have met the blue screen of death since that class.  Plus, I don’t have a current device that will read the 3.5” storage disks even if I could find the one containing said paper.  So, this will be much shorter than the 15 or so pages I wrote back then, and it certainly isn’t going to be anywhere near as scholarly.

Disclaimer: Some legal scholar is likely to read this and argue that it is the Fourteenth Amendment that bestows the rights I am going to discuss below. They can get their own blog. I prefer to use the text from the Fifth Amendment as it is more commonly known, and it gives me another opportunity to point out that the Miranda Warning is a complete fabrication of the court. Folks tend to forget that there are other parts of the Fifth Amendment, and yes, I know that Miranda includes portions of other amendments.  I understand the 14th Amendment and the theory of incorporation on the states.

And with that:

A long time ago in a nation seemingly far away, a document was written and ratified by a citizenry establishing a social contract and a system of government.  As part of the ratification process, the citizens insisted that certain additions be made to said document, and those additions became the Bill of Rights.

And then lawyers happened…

The Fifth Amendment contains more than the protections against self-incrimination and double jeopardy and other facets of criminal law that are most closely associated with it. Pay attention to the portions in bold:

“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 offence 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.”

To shorten this up considerably, the lawyers have successfully established in court that public employees have property and liberty interest in their jobs and that in order to be terminated, or lose pay, or be demoted, etc., they must be afforded due process. The employee has a right to a formal hearing and a chance to answer the accusations against them.

Even in specific instances in which an employee does not have a property interest, such as a probationary employee, a liberty interest still exists. As the saying goes, “You can fire a probationary (or at will) employee for no reason. You just can’t fire them for a bad reason.” Employees with no property interest can’t be terminated/demoted/etc. because they choose to go to or not to go to a particular place of worship (religious freedom) or for their diddling preferences (sexual orientation) or any such similar things. Also, if an employee is accused of dishonesty or other things that would sully their “good name” and likely prevent their ability to gain other employment, they must be given an opportunity to “clear their name”.

So, when you see a news story concerning some allegation against a public employee, and the story contains a passage such as “suspended with pay” that does not mean that is the end of things. It means it is the beginning. As the media and the public often have the attention span of a gnat (I presume gnats have short attention spans. I don’t actually know that this is the case, and it may very well be insulting to gnats to make such a comparison. Gnats likely have a longer attention span than the media and public.) and the follow up story, if there is one, comes well down the road and is buried closer to the back page of the story than to the front.

Those that read such stories and make asinine comments such as “paid leave will teach them” or the like truly are idiots in the purest Greek sense of the word. Bless you hearts.

I also suggest web searches on the Garrity Warning. Garrity is a tool that can be used in administrative investigations to compel an employee to make a statement; however, any evidence resulting from the use of Garrity may not be used in a criminal prosecution unless it is independently obtained.







2014 Polite Society Tactical Conference

The 2014 Polite Society Tactical Conference was held on February 21-13, 2014, at the Rangemaster facility in Memphis, TN.  The three-day conference consisted of numerous presentations by an amazing collection of knowledgeable instructors.  Three different options were available at any given time to attendees, and a myriad of topics were covered.  While I did attend a few presentations on other topics,  I tried to attend those that dealt with what is known about what happens in violent encounters; especially what those who won the encounters did and how they prepared, and these are the presentations I will discuss in this piece.

Before I get to that, I would like to thank the folks Rangemaster for organizing and hosting this conference.   The chance to partake of that much collective knowledge was a wonderful learning opportunity.  There were times when it was difficult to choose which class to attend as the concurrent options were all equally appealing.  I took 24 pages worth of notes, and many of the takeaways from the sessions will be incorporated into our training program.

William Aprill’s presentation concerning how violent criminal actors (VCAs) select victims forms the cornerstone for this area of discussion.  It basically comes down to the VCA making a “go or no go” decision based on indicators by the person they have targeted.  This is really no different than a lion surveying a herd of lion food and picking which member of the herd will be dinner that night.

Shane Gosa, a fellow Georgia peace officer, presented “The Mental Trigger” based on Jeff Cooper’s Principles of Personal Defense as well as other pertinent information.  Shane also addressed items such as mental awareness and winning the violent encounter rather than merely surviving it.

Tom Givens’ presentation on “Defining the Threat” was outstandingly well done.  Mr. Givens approached the question from the perspective of a citizen and not that of those in the military or uniformed patrol officers, and his breakdown if the information is the best I have ever seen.  His presentation (as was Chuck Haggard’s) on active shooters was nicely done, and quite frankly, I don’t understand how anyone could receive that information and then go about without the means to defend themselves.  As for active shooters, or active murderers as they should be called, every examination of the topic that have seen shows that the more rapidly force is brought to bear on the murderer the lower the body count.

Jim Higginbotham’s “Fire for Effect” presentation focused on accuracy in a critical event.  I found his illustrations of how many of the qualifying and competition targets actually reward high point values to areas that are not likely to instantly incapacitate a violent attacker to be quite revealing.  In my words, a fellow can kill you a whole lot if you give him 15 seconds to do it.

John Hearne did an outstanding job of debunking many of the myths and outright falsehoods that permeate firearms training.  I’m not much of a “science guy”, but his explanation of how the brain works was done in an easy to understand manner, and he makes a strong case for training to the point of “overlearning” (fancy scientific term) and building the proper mental maps and skill level as predictors for success in a violent encounter.

At this point, I would like the readers to take note that there is some commonality when both peace officers and private citizens are faced with a violent encounter, and overcoming the “initiative deficit” is imperative.   The difference here is that peace officers often initiate contact with the VCA whereas the private citizen is targeted; however, it is the response to that violence that must come swiftly and decisively, and the preparation shouldn’t begin at the point a person realizes there is a need for such.