Since grand juries have been such a hot topic of late, I considered researching and writing an article on the subject, but then I found a handbook published by the Hall County District Attorney’s Office on the topic. Click here to access a .pdf copy of the handbook.
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.
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.
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.
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…
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.
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.
The following video shows a group officers stopping a person who was walking down a sidewalk with a slung rifle. The lead officer indicates that he stopped the individual because he was armed and wanted to check to see if the guy was “just exerting his Constitutional rights.” The officer also made a general reference to active shooters, but went on to say, “I think I know what is going on here.” During the stop, the lead officer makes several references shooting the individual in the head. His only articulation of anything criminal was a general reference to active shooters.
This incident is actually being portrayed in some circles as the officer being pro-Second Amendment. I suppose this is because the officer does make several “pro” statements, but, in my opinion, these statements are clearly overshadowed by the repeated references to shooting the individual in the head. I am further baffled by some people with whom I am acquainted who are themselves very pro-carry holding this out as a positive example of how officers should handle such situations.
I do not understand this. The lead officer stated that he stopped the guy solely for being armed, which is clearly contrary to numerous holdings by the United States Supreme Court, and made numerous references to shooting the individual in the head. This leads to the question of whether these same people would be okay with being stopped when legally carrying simply for carrying and then being threatened with being shot in the head. The Reasonable Articulable Suspicion standard for an investigative (Tier 2) stop requires specific and articulable facts when taken together and based upon the officer’s knowledge, training, and experience lead the officer to believe that criminal activity is afoot. Is it reasonable to believe that just because someone is armed that they are a mass shooter?
The officer does have an even tone, and under the circumstances of the contact, his tone could even be described as somewhat genial. The officer then sets forth to lecture the individual concerning his open carrying in such a manner as being ultimately detrimental to Second Amendment rights. With this part, I actually am in large part in agreement; however, this is simply a personal opinion. I do understand that my personal opinion is not a valid reason to shoot people in the head, or any other part of their anatomy; thus, I can’t say such things to those who root for that bastion of evil inhabiting a football stadium in the suburbs of Dallas.
According to my philosophy professor in college, all Beagles are dogs but not all dogs are Beagles…
Compare the above video to those below where another officer pretty much says the same things except that his statements were made in the middle of a tirade. He was rightfully on the receiving end of copious amounts of outrage.
I guess he should have used a calm and even tone, and then everything would have been okay as he calmly states that he could murder a person and make their body disappear.
If you would like to listen to the non-emergency line call to dispatch for the first video, you can do so by clicking here.
On October 31, 1963, Detective Martin McFadden, age 62 at the time of the incident, took action that would lead to one of the landmark cases in criminal procedure: Terry v. Ohio, 392 U.S. 1 (1968). At the time of the incident, Detective McFadden was a 39 year veteran of the Cleveland Police Department. His career ultimately would span 45 years with 41 of those years as a Detective, and he was noted for his ability to capture thieves and pickpockets especially “Louie the Dip” Finkelstein.
On the day in question, Detective McFadden would spot two individuals (later joined by a third) in front of a store “casing a job, a stick-up”. He had watched the individuals repeatedly walking to a store window, looking inside, and then walking away and conferring. He eventually confronted the individuals and ultimately arrested two of them on weapon’s charges after “frisking” them and finding their pistols.
The individuals were convicted and the case ultimately wound up before the Supreme Court where it was upheld. In short, the Court ruled that the Fourth Amendment reasonableness standard is not violated when a peace officer has a reasonable articulable suspicion (RAS) to conduct an investigatory stop. Two important notes from the ruling was that, first, the Court stated that mere “good faith” of the peace officer is not enough to justify such a stop. Second, The Court also drew (and continues to draw) a distinction between that of a person being armed and that of a person being “armed and presently dangerous”. In other cases, the Court has ruled that there is not a firearms exception to the Fourth Amendment and thus their presence alone is no different that a person being in possession of a wallet (an actual example from a Supreme Court ruling).
Since the ruling in this case was handed down, investigatory stops have often been termed as “Terry Stops”. I take umbrage with this. Terry was one of the bad guys. Detective McFadden was the one that put forth some excellent police work; so, we should be calling these “McFadden Stops”, but alas, cops are like offensive lineman in that we only get close-up shots and our number called when forget the snap count or get caught holding.
The concept of reasonable articulable suspicion and the facts of the case are more detailed than what I have condensed here. The purpose of this article is to pay respects to Detective McFadden on the 50th anniversary of the incident.
Special thanks go out to retired Commander Bob Cermack of the Cleveland Police Department and the Cleveland Police Museum for providing pictures of Detective McFadden as well as other documents.
One of the things that I like about this blog software is that I get to see what search terms are leading readers here. Sometimes these search terms inspire a new posting, and this is one of those instances. I have gotten quite a few hits lately seeking information on the oath of office for Sheriffs and Deputies. Please note that the oath is the same for Sheriffs and Deputies alike:
STATE OF GEORGIA
OATH OF OFFICE FOR DEPUTY SHERIFF
I, ____________ do swear that I will faithfully execute all writs, precepts and processes directed to me as Deputy Sheriff of the County, or which are directed to all Sheriffs of this State, or to any other Sheriff specially, I can lawfully execute and true returns make, and in all things well and truly, without malice or partiality, perform the duties of the office of Deputy Sheriff of Oconee County, during my continuance therein, and take only my lawful fees.
I do further swear that I am not the holder of any unaccounted for public money due this State, political subdivision or authority thereof, that I am not the holder of any office of trust under the government of the United States (except Postmaster), nor either of the several States, nor any foreign State, and that I am otherwise qualified to hold said office according to the Constitution laws of Georgia, and that I will support the Constitution of the United States and of this State. So help me God.
Sworn to and subscribed before me, this ___ day of _____________
Sheriff, Scott R. Berry
Oconee County Georgia
Jailers also take an oath of office; so, I have included it here as well. A Deputy Sheriff who is assigned to the jail takes the oath of office for both positions.
OATH AND BOND OF JAILERS
Oconee County Sheriff’s Office
I, _____________,do swear that I will, well and truly do and perform, all and singular, the duties of jailer for the County of Oconee; and that I will humanely treat prisoners who may be brought to the jail of which I am keeper and not suffer them to escape by any negligence or inattention of mine, so help me God.
Signed: _____________________ Date:______________
Scott R. Berry , Sheriff
Personnel who are hired initially to work in a jail have six months from their date of employment to complete an 80 hour Basic Jail School. In order to become a certified peace officer, those personnel must complete the 408 hour Basic Law Enforcement Training Course. If a person is already certified as a peace officer and gets assigned to a jail, they have six months to get certified as a Jailer.
Now, for one of life’s little injustices, Deputies are eligible for the Peace Officer’s Annuity Benefit Fund (POAB). Jailers are not. So, a Deputy assigned to the jail is eligible for POAB, but a Jailer doing the exact same job is not. Why? Because the State of Georgia says so, that’s why. It should be noted that the State has seen fit to include state correctional officers in POAB but not Jailers.