Uncategorized

Precedent But Not That Precedent

Yesterday, 4 June 2019, word began to spread about the interweb that the state of Florida had filed criminal charges against a former “deputy” who allegedly failed to act in the face of an active killer.  I use the word allegedly because now with criminal charges having been filed, the individual is presumed innocent until otherwise proven in court.

As news of the charges has spread, I have seen numerous comments to the effect of:

“The Supreme Court ruled that the police have no duty to protect…”, followed up by statements that the case will be thrown out due to the aforementioned ruling.

Such statements are (wrongly) based on two cases: Warren v. District of Columbia, 444 A.2d. 1, D.C. Ct. of Appeals (1981), and Town of Castle Rock v. Gonzales, 454 U.S. 748 (2005).

In Warren, the District of Columbia Metropolitan Police Department was sued in what started as two separate cases asserting a public duty protect.  The D.C. Court of Appeals (not the Supreme Court) ultimately ruled that the police had a duty to provide service to the public at large but that it had no duty to protect individuals barring any sort of special relationship.

In Castle Rock, a federal civil rights lawsuit brought under 42 U.S.C. 1983 claimed that failure to enforce a restraining order (we call them protective orders in the great state of Georgia) violated the plaintiff’s rights.  She claimed that the restraining order gave her a “property interest” to the enforcement of the order under the Due Process Clause.  The Supreme Court rejected that argument stating that the restraining order did not attach a property interest and thus “no legitimate claim to entitlement” existed.

Both of the above-cited cases were civil suits.  Nothing in the rulings bars the prosecution of state-level criminal charges.

The actual charging document, including the probable cause statements, can be read here.

In short, the state is alleging perjury based on a sworn statement by the accused that he didn’t hear shots (other than initial shots) after he arrived at the building in which the murders took place.  The state is further alleging that the accused’s failure to act as he was trained resulted in neglect and abuse of minor children.  It should be noted that the affidavit refers to official agency policy (which isn’t law) and a contract between the agency and the school system.

I do not pretend to know how the case will ultimately be resolved.  I write this article simply to point out the erroneous statements regarding existing precedent and to assert that this single criminal case in state court in Florida does not and will not result in any sort of binding precedent throughout the rest of the country.  If he is convicted, it does not even establish binding legal precedent in Florida.  That’s not how precedent works.

Traffic Citations: Elements of the Offense

The Georgia Court of Appeals has overturned a conviction for a traffic offense based on the fact that the officer only listed the title of the offense and the code section.  See Strickland v. The State, A18A1829 (2019).

In the case in question, the citation was written for the offense of “Following too closely” with the code section being 40-6-49 O.C.G.A.

The issuing officer did not provide any remarks on the citation establishing the elements of the offense of “Following too closely”.  The court reasoned,

“the true test of the sufficiency of an indictment or accusation or citation
is not whether it could have been made more definite and certain (or, for
that matter, perfect,) but whether it contains the elements of the offense
intended to be charged, and sufficiently apprises the defendant of what
he must be prepared to meet, and in case any other proceedings are taken
against him for a similar offense, whether the record shows with
accuracy to what extent he may plead a former acquittal or conviction.”

In other words, the citation needs to list the facts necessary to establish the elements of the offense.

A simple listing of the details of the offense written in the remarks section should be sufficient.

 

Killers and Their Vouchsafed Protections

“When James Bogan Weems went to work on March 9, 1968, there was no reason to anticipate that before the day was out he would be a corpse, made so by an armed robber…”. So begins this tale of woe.

Bogan was my father’s first cousin. He was a World War II veteran having served in an anti-tank company of the 155th Infantry. On his last night working as the manager of the Red Bird Service Station in Clarksdale, MS, he was shot and killed by one Tommy McNeal. Obviously, if he was killed that night, it was his last night working there or anywhere else, but our tale is compounded in its woefulness in that Bogan had accepted another job, and that fateful night was his final scheduled shift.

As I so oft heard the story, Bogan had regularly made bold pronouncements as to what he would do if anyone ever tried to rob his station. True to his word, Bogan put up a fight with his .32 Smith & Wesson, but 3:1 are bad odds when you are flying solo. Tommy McNeal was not alone.

There was no profit for their misdeeds as our antagonists dropped the money in the midsts of their gunfire hastened departure.

Bogan’s demise was one of those precautionary tales of my youth; as much a part of my upbringing as another that I have related.

My grandmother told me that Bogan’s killer had gotten off on a technicality, but she never offered details. One day I was inspired to consult the all-knowing Google, and right there just waiting for me to come looking were the court decisions in the case.

Tommy McNeal fled to Chicago, but he was captured. At the initial trial, one of the prosecution witnesses did not testify as expected, at least as expected by the prosecutor, who then asked for and was granted a mistrial on the grounds that he wanted a do-over.

A second trial resulted in a conviction and sentence of life imprisonment for McNeal. He appealed claiming error in the jury instructions, but the state of Mississippi was wont to turn loose a killer.

After his state-level appeals were exhausted, McNeal’s lawyers filed a federal habeas corpus petition.  It was denied at the district court, but the federal appellate judges undertook a more strict reading of the Constitution than did their Mississippi and federal district counterparts, and they found fault with the prosecution’s tactics; thus a killer was set free.

The quote at the outset of this piece comes from a dissenting opinion in the appellate court’s holding as does the title which is derived from the following quote:

“Nevertheless, all persons, including killers, are entitled to certain specified protections vouchsafed by the Constitution of the United States.”

The dissenting judge pointed out that a claim of double jeopardy was not raised at the second criminal trial as it should have been; however, the rest of the appellate court didn’t seem to think that poor lawyering was cause to overlook the Constitution.

For brevity’s sake, I didn’t outline all of the prosecutorial shenanigans in this case.  They are detailed in the federal appeal.

While I see the validity in the dissenting opinion, I can’t escape the fact that the prosecution botched the case, and the rules are that the burden is on the prosecution, vouchsafed protections and such, even when it is my kin being made a corpse by an armed robber.

 

Trespassing

“No trespassing” signs in Georgia are meaningless.  16-7-21 O.C.G.A. is the statute that deals with criminal trespass.

Danger_No_Trespassing_Sign_1024x1024.jpg

The first part of the criminal trespass law deals with intentional damage to someone else’s property with the damage being less than $500, and it also addresses the malicious inference with the possession or use of another’s property.    That part is pretty simple.

The misunderstanding of the law pertains to entry onto the property of another.

There are three instances in which entering upon the land, vehicle, aircraft, railroad car, etc, of another, is prohibited:

  • When the entry is made for an unlawful purpse
  • When having received specific and individual notice from the owner, rightful occupant, or authorized representative of same that said entry is prohibited
  • Remaining on the property of another after having been notified to depart by the owner, rightful occupant, or authorized representative of same

In other words, if one owns it or rightfully occupies it, one can prohibit entry or order others to leave it.  Also, if a parent or guardian has given such notice, this can’t be undone by a minor child.

As to item number two in the above instances, signs are not specific and individualized notice.  There are a multitude of cases in which the Georgia appellate courts have held that individuals must be specifically advised of exactly which property they are prohibited from entering or remaining.  There is even a case in which a conviction was overturned because the defendant had been ordered to stay away from her ex-husband’s place of employment via a divorce decree rather than an actual owner/occupant/representative of the property.

In order to prosecute a person for criminal trespass, the state must prove that the person received a specific and individual notice to leave or not enter a specific property.  There is case law that such notice is valid for two years.

From a practical standpoint, as a peace officer, I don’t know who you have authorized to swim in your pool or fish in your pond or otherwise be on your property.   Furthermore, I can’t decide who you can let swim in your pool or fish in your pond, etc.  You are the property owner, and that is your decision.

Methods of notification may include sending someone a registered letter informing them to stay off of a specific property or serving an individual personally with written notice to stay off of a specific property.  It’s a typical (but may not be universal) practice for law enforcement to carry either a “barring notice” or “prohibited entry form” that can be filled out on scene and served to individuals, but again note, this must be at the behest of the owner/occupant/representative or the property.  A verbal notice will also work, but my advice would be to make a recording of such notice being given.

Familiarity Breeds Contempt

I grew up primarily on what had been my grandfather’s dairy.  My father harped on me when dealing with the livestock, “Familiarity breeds contempt”.

The meaning of that saying was just as soon as you started thinking one of the livestock wouldn’t hurt you, it would hurt you.  It was more than just words.  My grandfather was killed by one of his cows.

I ignored the rule at least twice.  I wound up unconscious both times.  The first words my father said to me on each occasion, “Familiarity breeds contempt.”

Today, I dealt with a guy whom we had arrested previously.  He has an active protective order against him.  In that encounter, he tried to bait me into an escalation.  Later in the day, I responded to a call with the same subject.  He entered a residence from which he is prohibited, and he busted out the windshield of a car on scene as well along with some other damage.

The subject fled to a nearby vacant house.  It was there that I confronted him.  He screamed at me to shoot him.

And then he shoved his hand into his jacket pocket.

I had a decision to make and only a split second in which to make it.  I was pretty sure that he was just baiting me.  I  was pretty sure that he didn’t have a firearm in his pocket, but in a moment of tachypsychia I heard my father’s voice..

Familiarity breeds contempt.

Later when I talked about the incident with the Sheriff, he said, “If you hadn’t just dealt with him and knew his state of mind, or if it had been another deputy who confronted him in that house, he’d be dead right now.”

I had to make a split-second decision as to whether or not to press the trigger.  Legally, I can articulate a justification for doing so, but if I had, I’d be the latest cop to be plastered all over the news as having killed an unarmed man.  If he had been armed, and my “pretty sure” was wrong, I would have been in initiative deficit, and I might be all over the news tonight for a much different reason.

While I have been able to wrap this whole thing around a saying from my upbringing, this type of incident plays out repeatedly for peace officers all over the country.  It really is that close of a call time and time again.

As another saying goes: It’s not the odds; it’s the stakes.

Training Cake

I first became aware of Patton Oswalt due to his portrayal of the character “Constable Bob Sweeney” on the show Justified.  He is also a standup comic.

Before I go any further, I tell you now that he is an atheist, he cusses, and he discusses religion.  Don’t click on the link below if your sensibilities can’t handle it.  I also warn you that it is not safe for work.

Oswalt does a bit titled “Sky Cake” in which he discusses his theory on the origin of religion and religious wars.  He jokes that one of his ancestors, a weakling, convinced a bigger and stronger guy not to go around pillaging and that the reward for good behavior would be that when he died he would go to a magic city in the clouds where he would be served “sky cake”.  He goes on to say that this worked well until someone from another continent sailed across the ocean and mentioned the “sky cookies” that he had been promised as a reward for not pillaging.  This of course led to a war between the “sky cake” people and “sky cookie” people.

I draw a parallel to this bit and the respective groups in the firearms training community.  Students pick their favorite guru and only the techniques taught by their guru are correct and everyone else is wrong.  If it stopped there it wouldn’t be so bad, but as Oswalt said “sky cake only tastes good if other people can’t have sky pie”.  It’s fairly common in the training community, which is a very small community, for the members of one camp to try to tear down members of another camp.

At times, the criticisms are legitimate.  There are “trainers” out there who put out a bad product or who otherwise engage in behavior that rightfully earns a flag.  As my friend Tom Givens says, “I learned something in every class I ever attended.  Sometimes it was how not to do things.”  Unfortunately, there are plenty of instances in which the criticisms that readily rampage about the interweb are driven purely by personality rather than legitimate discussion and evaluation.

Recently, I had the opportunity to review a set of videos by a noted trainer.  The trainer demonstrated his method for performing a particular task.  His method is different than the technique taught by my chosen guru.  The first thing that flashed in my mind is, “That’s wrong.  That isn’t how ‘my guru’ teaches to do that.”  I almost stopped the video, but then I laughed at myself and thought, “You want training cake, and he is serving training cookies.”  I backed the video up and watched the segment again.  There was one part of his method that caught my eye, and after a little bit of experimentation, I was able to refine what I was previously doing while not abandoning my technique.  It made what I was already doing better.

It was like having training cake with training cookie crumbles on top.

If I had completely shut out everything he had to say because his method wasn’t my guy’s method, I would have missed what actually became to me the most valuable portion of the video.

Entering a Residence

At the time of this writing, a few days have passed since the Sentinel (OK) police chief and several deputies from the Sheriff’s Office went to a residence in response to a bomb threat at a local day care.  It was believed that the threat originated from the residence in question.  The chief and the deputies made entry into and began clearing the house.  A resident of the house opened fire striking the chief four times.  The chief survived due to the fact that he was wearing a ballistic vest.  It should be noted that the entry was made in the very early morning hours.

The Oklahoma State Bureau of Investigation has announced that charges are not being brought against the resident who fired the shots.

I have read several articles concerning this incident, and there is one glaring omission in each of them, and that is that no mention is made as to whether or not the peace officers involved had a valid search warrant to enter the residence.

There are four legal means in which to enter a residence.  As outlined in the 2-3-4 Rule, they are: consent, a search warrant, hot pursuit, and exigent circumstances.  It is pretty obvious that they didn’t have consent.  They also didn’t chase anyone into the house; so, there goes the hot pursuit exception.  That leaves only exigent circumstances or a search warrant as legal means of entry.

A simple explanation of exigent circumstance would be a situation in which immediate entry was required in a situation in which there was a immediate risk to life, such as an officer hearing calls for help or officers arriving to a call of domestic violence and hearing what appears to be a violent physical encounter taking place.  In such instances, the circumstances would make it extremely unreasonable for the officers involved to obtain a warrant prior to entry.  For instance, it would be completely unreasonable for peace officers to not enter the scene to stop a stabbing in progress.  Another example would be to prevent evidence destruction.  Readers are encouraged to seek out more information on exigent circumstances beyond this brief attempt at an explanation.

As to the incident at hand, I suppose one could make an argument for exigency; however, I would need much more information than is provided in the various articles.  Does a reported bomb threat for a daycare that was not currently open an occupied constitute exigency?  Was there some information that led the officers on scene to believe that they must enter immediately to save lives or prevent the destruction of evidence?

Again, the information provided in the articles is lacking, and second guessing officers on the scene when not having all of the information they had is not a practice in which I readily engage.  After all, they may have had a warrant with such just not being mentioned in the articles.  I simply saw this as an opportunity to discuss the legal requirements for entering a residence, and this article is by no means intended to imply wrong doing on the part of those involved.

X Because of Y Was Really Because of Z

I read an online rant by a guy claiming to have been arrested for “standing up at a football game.”  I’m not familiar with the laws in every state, but I was fairly certain that no state, especially Alabama, had a law making it illegal to stand up at a football game.  I contacted the arresting agency and requested a copy of the incident report.

The truth of the matter was that the guy bought a general admission ticket.  During the game, he moved to the reserved seating area where he stood directly blocking the view of other fans. Those fans complained to the event staff upon which time it was discovered that he didn’t have a ticket for that area.  He was asked to return to the general admission area, and he refused.  He was subsequently arrested for Alabama’s version of what we in Georgia would call criminal trespass.  The element of the crime was that he was in an area for which he didn’t have a ticket and refused to leave that area.  It wasn’t for standing up at a football game.

The story above was to illustrate what is a frequent occurrence of the misreporting, intentional or otherwise, of a police-citizen encounter especially when there is a sensational outcome.

At the time that I write this, the news media is buzzing with a story about a man in New York City that died after a confrontation when police there attempted to arrest him supposedly for selling cigarettes on the street.

Some pundits and social media users are making such statements as “he was killed for selling cigarettes.”

Such is absolutely not the case.  Force was not used by the police officers on scene until the man began to physically resist arrest.  Therefore, force wasn’t used for selling cigarettes on the street, it was used due to a lawfully arrested person resisting arrest (obstruction under Georgia law).  Had the man not physically resisted the arrest, the incident would not be a news item.

Nothing in the above should be construed as to supporting the existence and enforcement of such laws dealing with the street vending and taxation of cigarettes.  Nothing in the above should be construed as advocating the use of any particular tactic.  All I will say in regard to the tactics used is that if a person is able to say anything, especially repeatedly, then they have not been “choked out”.  If you doubt this, go by your local mixed martial arts gym and request someone there put you in an actual choke hold and see if you are capable of speech.

I urge you to look past headlines and emotional appeal of a situation and drill down to the actual facts of a case.

Walking in Their Shoes

You all know the old saying about not judging a person until you have walked in their shoes.

This weekend a horrible tragedy played out in Cleveland, OH.  The common thread among the media reports are that two officers from the Cleveland Police Department responded to a call of a young male waiving around a gun.  As the officers approach, one tells the young male to raise his hands.  Instead, the young male draws the pistol from his waistband at which time the officer fires.  The boy was killed.

The gun turned out to be an air-soft (fires plastic BBs) replica of a model 1911 pistol.

Some reports claim that callers mentioned the possibility of the gun being fake, but it is not clear whether this is accurate or if that information was relayed to the responding officers.  In the end, if this is indeed the case, it will certainly add more fuel to the angst fire, but it really doesn’t change the situation to any large degree as this information may certainly be taken into account by responding officers as it couldn’t be accepted as 100% reliable either.

Now for the walking in their shoes part…

I was working midnight shift on patrol.  Other units responded to a reported shooting, and they put out a look out for a very distinctive vehicle that passed by at the exact time of the shooting.  A short time later, I was dispatched to a fight in progress call.  As I arrived on scene, I see the vehicle described as being at the scene of the earlier reported shooting.  It was in fact the very same vehicle.  The vehicle was being chased by several people on foot who were running after it.  I told the people chasing the car to stay back; I caught up to the vehicle; and I initiated a stop on the car keeping in mind that it was very likely connected to the reported shooting.

As the vehicle stopped, the passenger immediately jumped out of the vehicle and turned toward me.  Light from a streetlight glinted off of what appeared to be a silver, metal object in his hand.  I drew my old S&W 4006 out of a Safariland 070 duty holster, and as I type this, I can clearly see the image of my Novak front sight superimposed over the center of his chest.

The object in his hand was a cell phone.

Had he made any move that looked threatening after I saw the light glinting from the object, I would have fired.  I have no doubt of this.  It all happened in split seconds, but the event plays over and over again in slow motion in my mind whenever I think of it.

In another instance, I almost shot a college student who swept back his jacket to show me that the gun that he was carrying was a toy gun.  He saw me, freaked, and turned towards me sweeping back his jacket.  In his mind, he needed to show the cop that he didn’t have a real gun.  All I saw was a guy spin toward me while sweeping his jacket out of the way and reaching for what appeared to be a pistol in a holster on his belt.

The only reason I didn’t fire was that I saw and recognized the power chord coming out of the butt of the pistol.

Yup.  He was carrying the pistol from his video gaming console.

The individuals in the car in the first incident had by pure coincidence driven by the scene of the reported shooting as it occurred.  They made the mistake of pulling into a fraternity parking lot to park their car.  The members of the fraternity took exception to this and the result was a fight.  The two guys jump back into the car (after one of them unleashes a can of pepper spray) and leave the parking lot with the fraternity members chasing them only for me to arrive at the same time.  In the second incident, the individual was a college student on the way to a costume party at a bar.  We happened to wind up in the same parking lot at the same time, and he freaked thinking the cop saw that he had a “gun”.

Both of these incidents could have easily resulted in “Cop Shoots Teenage Holding a Cell Phone” or “Cop Shoots College Student Armed with Video Game Pistol” headlines.

The decisions in those incidents were made in less than a second each.  It turned out that I was right both times.  The irony is that I could have been wrong and still been right.  I also could have been wrong and ended up dead.  That is the pure truth of the matter.  Life and death decisions made instantaneously, in real time, and without the benefit of slow motion replay to see if the ref blew the call.