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What’s Old Is New Again

In 1918, a pandemic swept around the world.

In 1919, a series of riots swept through American cities.

A century later we have learned to be more efficient by having both within a few month period of the same year.

On 20 June 1973, the NYPD announced that it was disbanding the Stake-Out Squad.  The aforementioned unit had been created to address a spate of armed robberies/murders taking place in the city.  The unit, while the most well known, was not unique as numerous other agencies, such as Dallas, had similar units.

Here’s a video reenactment of the NYPD’s unit in action:

The following video is hard to watch.  I watched it hoping to hear primary source information on the Stakeout Squad from unit member Jim Cirillo.  Unfortunately, he wasn’t given much opportunity to actually speak in depth.  I include it in this article simply because it contains some of the same arguments currently being bandied.

This week, the NYPD announced that it was disbanding its Anti-crime Units.  The debates around the units are similar to those surrounding the Stakeout Squad.

I could write several paragraphs if not chapters on strategies.  I could also write on viewpoints.  I’ll cut it short by stating that I and my contemporaries have often been at a loss when accused of racial attitudes that we didn’t display much less possess, but it wasn’t until watching the video included below that I began to understand some of those accusations.  I wasn’t raised in a household in which I was told that the cops were part of an oppressive machine.

My great-great-great-grandfather Weems was a slaveholder.  I know this because I have a copy of his will, and in it, people were listed as property.

My father protected civil rights marchers in the 1960s.

I should neither be blamed for the actions of the one nor credited for the actions of the other as I didn’t do either of those deeds.  I should only be judged for my actions, but that is not our world because “we” don’t choose for it to be.

 

Not That Precedent Rides Again

In June, the news hit that a former deputy who allegedly failed to act in an active killer situation in Florida had been criminally charged at the state level.  The social media discussions that ensued were filled with misapplications of precedent to the case.

Six months later, news is beginning to spread that a peace officer in Oklahoma was indicted on a murder charge after he used deadly force to stop an active shooter.  The details of the actual incident and the reasoning behind the indictment are thin.  All that has been reported at this time was the now-indicted officer responded to a call of an individual having shot at multiple people including the responding officers.   The officer in question reportedly fired approximately 60 rounds into the suspect’s vehicle killing her.

Social media is striking again with assertions that Tennessee v. Garner, Graham v. Connor, and Scott v. Harris should apply.

They don’t.

Well, they don’t apply to state-level criminal prosecutions.  While all three above cited cases are landmark cases involving the use of force by peace officers, they each stem from federal civil rights lawsuits.  They don’t apply to state-level criminal prosecutions.  

I saw one assertion that the indictment was an attempt to challenge one of the above cases.

It won’t.

No matter what the verdict, a state-level criminal prosecution will be decided upon the respective state’s criminal laws.  The three federal cases cited above whereas all based on 42 U.S.C. 1983 alleging violations of civil rights, and they were decided based upon the objective reasonableness standard established by the Fourth Amendment of the United States Constitution.

Those three cases will likely come into play when the inevitable federal civil rights lawsuit is filed by the deceased’s estate, but, once again, they do not apply to the criminal charges.

Georgia Law on the Treatment of Pregnant and Postpartum Women

Georgia has passed a law pertaining to the handcuffing and restraint, among other things, of pregnant and postpartum women.  The code section is 42-1-11.3 O.C.G.A.

A key portion of the law deals with handcuffing or restraining women in the second or third trimester of pregnancy or in the immediate postpartum period, defined by the law as the immediate six weeks after childbirth unless extended by a physician:

(1) Except as otherwise provided in this subsection and notwithstanding Code Section 42-5-58, a custodian shall not use handcuffs, waist shackles, leg irons, or restraints of any kind on a pregnant woman who is in the second or third trimester of pregnancy, in labor, or in delivery, or on a woman in the immediate postpartum period.
(2) A woman who is in the immediate postpartum period may only be restrained using wrist handcuffs with her wrists held in front of her body and only if there are compelling grounds to believe that such woman presents:

(A) An immediate and serious threat of harm to herself, staff, or others; or
(B) A substantial flight risk and cannot be reasonably contained by other means.
(3) If a custodian uses wrist handcuffs on a woman who is in the immediate postpartum period under an exception provided in paragraph (2) of this subsection, the circumstances for and details of such exception shall be documented within two days of the incident. Such information shall include the nature of the circumstances and the length of time of such use of restraints. The documentation shall be reviewed by the officer in charge and retained by the penal institution for reporting purposes.

I won’t argue as to how this applies to initial arrests.  I suggest that if you are a Georgia peace officer that you seek legal guidance from your agency on that matter.

Chips on the Table

So there he was…

A rookie cop who graduated from the academy in December of 2018.  I’m told that his classmates and the staff at a regional academy serving 10 counties voted to award him the class flag.

In March of 2019, while still in field training, he was involved in a shooting.  He rode the bench for a couple of months while the shooting was investigated.  He was only recently cleared to resume field training.

And then 1 July 2019 happened…

That rookie cop, still in field training, responded to a call along with his field training officer (FTO).  I haven’t listened to the dispatch recordings first hand, but it is my understanding that the call was originally an unknown problem call involving someone covered in blood.  The dispatch was later updated to the bloody suspect wielding a knife in a confrontation with a maintenance man who had fired shots.  I do not know the timeline of the update and the arrival of the officers on scene.

What happened next was a tense, uncertain, and rapidly evolving situation; a situation which has been torn apart with 20/20 hindsight of numerous keyboards.

Yeah, there are some nits to pick, but there are also two undeniable facts:

-Two officers tried their best to not kill a guy.

-A rookie cop who hadn’t even completed field training and who had been put the ringer of a shooting investigation already made a chips on the table head shot to save his fellow officer.

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.