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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.

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.

 

 

 

 

 

 

Private Campus Officers and Immunity

The Georgia Supreme Court recently decided a case concerning private campus officers and qualified immunity.

The first sentence of the decision is as follows:

“We granted certiorari to decide whether a campus police officer employed by a private college qualifies as a “state officer or employee” who may assert immunity from tort suits under the Georgia Tort Claims Act (GTCA), OCGA §§ 50-21-20 to 50-21-37.”

In a previous piece, I outlined the statutory authority of campus law enforcement agencies.  Let me be very clear that this case pertains only to the the campus police agencies of private colleges.  It has absolutely, positively nothing to do with the campus police departments of public educational institutions.

The legal question arises from a case handled by the Agnes Scott College Department of Public Safety (ASCDPS).  The personnel involved are fully certified peace officers.  They attended the same academies as do deputy sheriffs and municipal police officers.

The ASCDPS received a report from a student claiming that she had been sexually assaulted in her dorm room.  She named a suspect.  An officer from the ASCDPS went to a judge and obtained an arrest warrant for the suspect named by the complainant.  The suspect was arrested in Knoxville, TN, and extradited to Georgia.  The suspect offered proof that she was in Knoxville at the time of the alleged assault, and the District Attorney dropped the charges.  The suspect then filed suit against the officers and Agnes Scott College for false arrest.

The officers sought to have the lawsuit dismissed claiming immunity under state law.  The initial trial court rejected this argument; however, the Court of Appeals overturned the trial court.  To simplify the writing of this, the statute provides that law enforcement officers have immunity, but the statute also excludes private organizations.  The appellate decision was split.  The state Supreme Court recognized the reasoning of the appellate decision but overturned the decision due to Agnes Scott College being a private organization.

So, yes, the ASCDPS officers are in fact law enforcement officers, but as they work for a private organization, they are not covered under the state’s immunity laws.

Again, this ruling does not apply to the campus police officers of public institutions.

Now that the legal question has been settled, the actual lawsuit is clear to go forward.

Logic Me Not

Regardless of where you come down on private citizens carrying firearms in public, and no matter what your views are concerning Georgia’s House Bill 60, the complete failure of logic occurring among the governing authorities of some Georgia counties and municipalities is astounding.

Under current state law, it is illegal to carry a firearm into a “government building”.  Here is the definition of a government building from 16-11-127 O.C.G.A.:

(3) “Government building” means:

(A) The building in which a government entity is housed;

(B) The building where a government entity meets in its official capacity; provided, however, that if such building is not a publicly owned building, such building shall be considered a government building for the purposes of this Code section only during the time such government entity is meeting at such building; or

(C) The portion of any building that is not a publicly owned building that is occupied by a government entity.

(4) “Government entity” means an office, agency, authority, department, commission, board, body, division, instrumentality, or institution of the state or any county, municipal corporation, consolidated government, or local board of education within this state.

Currently, the only thing keeping armed criminals from entering many government buildings within the state is words on a piece of paper: a written law.  Outside of courthouses, active security screening is not present in the majority of government buildings.

HB60 changes state law as to carry into government buildings.  Effective July 1, 2014, it will be legal for the holder of a Georgia Weapons Carry License (GWCL) to carry into government buildings that do not have active security screening.  It will still be illegal for those who do not hold a GWCL to enter such buildings.

Now, as to the logic failure, a simple perusal of media outlets indicates that there are numerous city and county governments contemplating installing security equipment and hiring security staff to conduct screening at government buildings that do not currently have such security measures in place.

That’s right, the city and county governments in question who before were not worried about armed criminals entering their buildings thus they took no measures to stop it are now taking active measures to prevent legally armed citizens, citizens who have undergone background checks and obtained licenses no less, from entering.

One more time: no security measures to prevent armed criminals from entering versus security measures to prevent legally armed citizens from entering.

That’s right; people who took no steps to keep out armed criminals are taking steps to keep out people who have actually passed background checks.  I just wanted to make sure everybody was clear on that.

But wait, the law said criminals can’t enter government buildings with firearms, and we all know criminals are so good at obeying laws…

Praise the Lord And Pass the Ammunition: Georgia HB60

The Georgia General Assembly passed House Bill 60 which made changes to Georgia’s firearms carry laws. For the most part, my opinion is that this a good piece of legislation in that it clarifies some ambiguities, and more importantly, it clearly codifies into law what the courts have already ruled: there is no firearms exception to the Fourth Amendment and the mere presence of a firearm alone is not sufficient reason to detain a citizen.

Unfortunately, there is one portion of the bill that will prove to be problematic. Currently, all places of worship are “off limits” for Georgia Weapons Carry License (GWCL) holders. Under HB60, the governing bodies of places of worship may take the affirmative step to allow firearms carry on their premisses and at their services. Unless this affirmative step is taken by a respective place of worship, it will remain an off limits location.

Rather than take the position that places of worship are private property and treating them just as any other private property in the state, the legislature has created tool of division that is going to ripple through congregations throughout the state. Some congregants will be mad because the governing body of their particular place of worship chose not to allow firearms carry. Likewise, some congregants will be mad because the governing body of their particular place of worship took the opposite approach.

Furthermore, suppose the congregants and governance of an individual church desire to allow carry; however, the church is part of a denomination and the powers that be for the denomination go the other way and impose said ruling upon all member churches. The individual church breaking away from the denomination is not a simple matter as that might seem. In some denominations, the congregation does not own the title to the church building, the denomination does. This could lead to court battles over control of church property.

I am not normally a “the sky is falling” type person, but I simply foresee a lot of consternation and strife coming from this. Stand by for the law of unintended consequences.