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Apparently Tone Does Make A Difference

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.

and

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.

50 Years of the McFadden Stop

On The Job

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.

2004012021Marty at work
Detective McFadden at work.

2004012018RetirementCake
Detective McFadden at his retirement party.

Obituary 1981
Detective McFadden’s obituary.

Oaths of Office: Sheriffs, Deputies, and Jailers (and a rant)

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

OCONEE COUNTY

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.

Signed: …………………………………………….

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.

From Subjects to Citizens

A few hundred years ago, there was a prevailing political theory that asserted that certain men should have dominion over all others. They claimed this power was a divine right bestowed upon them and their posterity and that any disobedience to their rule equated to defying the very will of God. Individual merit, talent, or achievement meant nothing. Morality meant nothing. Sound judgement meant nothing. All it took to rule was to be the closest living blood relative to previous occupant of the big chair.

A counterpoint view began to emerge that man possessed inalienable individual rights and that government not haveing the consent of the governed was not legitimate. In order to stamp out this political theory, a king sent forth his troops to seize the very means to resist from those who opposed him.

Those that rejected absolutism resisted. They resisted with weapons exactly the equivalent of the arms being sent by those seeking to keep them subjugated. In fact, they actually captured the king’s cannon and used his own weapons against him.

Subjects became citizens. When the shooting was all over, those same men who had just fought a bloody war to achieve a new status and establish a new political order wrote a document outlining and limiting the power of government. Included in this document was an enumeration that the people have an un-infringed right to possess arms. These men had just used very same type of weapons that the king sent against them to defeat his forces. It does not stand to reason that they would enumerate such a statement and not intend for it not to follow through the ages along with the evolution of technology. That right was not frozen in 1791 just as the right to freedom of speech is not restricted to writing letters on parchment with a quill and sending it via horse and rider.

Now, let us move forward to a more modern age.

My grandfather was drafted into the Army for World War II and was sent to Italy to serve as an infantryman. He was issued a rifle and sent into battle.

In the 1960s, my father was in command of a National Guard unit that took part in protecting Civil Rights marches in Georgia.

In the days after the horrific events at a Connecticut elementary school, I put on my badge and uniform and stood in front of a local middle school with a not only a semi-automatic rifle close at hand but a select-fire fire weapon as well.

In the three examples above, each individual was receiving a government paycheck and was carrying the respective firearms in the service of the government.

Why was it acceptable to some for my grandfather to have fought in defense of his country with a rifle while using that same rifle to protect his wife and children is considered wrong by some people? Why was it acceptable to some for my father to carry a rifle to defend the civil rights movement while possessing that same rifle to protect his wife and children is somehow wrong? Why was it acceptable for me to have a rifle at the ready to protect school children while having that same firearm to protect those that I hold dear is wrong?

Let us take that one step further. Does somehow being in the service of government grant a special dispensation of morality while only evil is bestowed upon the same rifle when in the hands of someone not receiving a government paycheck? I answer firmly in the negative. Are electricians, systems analysts, statisticians, or whatever else somehow devoid of the moral clarity to defend their own homes and families? Again, I answer firmly in the negative. Should they be restricted from having the very same tools as those they are being taxed to purchase for those whose salaries they are also being taxed to fund? No shocker here as I again answer firmly in the negative.

I end with this quote from Lt. Col. Jeff Cooper:

“The rifle itself has no moral stature, since it has no will of its own. Naturally, it may be used by evil men for evil purposes, but there are more good men than evil, and while the latter cannot be persuaded to the path of righteousness by propaganda, they can certainly be corrected by good men with rifles.”

The 2-3-4 Rule

Below is the 2-3-4 rule. The “2” is for the two types of legal authority possessed by a peace officer. In order to detain a citizen either of the authorities must be in play. The “3” is for the three tiers of police-citizen encounters as outlined by the courts, and the “4” list the four ways in which a peace officer may legally enter a dwelling.

Two Types of Legal Authority (LA)

  • Reasonable Articulable Suspicion (RAS):  A set of facts and circumstances that would lead a reasonable and prudent peace officer based on his or her knowledge, training, and experience to believe that criminal activity is afoot.  Case Reference: Ornelas v. US, 517 US 691, 95-5259 (1996)
  • Probable Cause (PC):  A set of facts and circumstances that would lead a reasonable and prudent person when using all of their senses to believe that a crime has been or is about to be committed by the suspected person.  IMPORTANT NOTE per Wagner v. State, 206 Ga.App. 180, 424 S.E.2d 861 (1992): The mere fact that someone calls the police does not constitute probable cause.

Three Types of Police-Citizen Encounters

  • Verbal/Consensual Encounter (Tier 1):  No legal authority is needed to approach a citizen.  The encounter must be voluntary on the part of the citizen, and the officer must display no show of authority other than to identify him or herself as a peace officer.  An officer may ask for consent to search during a verbal encounter.  Case References: Florida v. Bostic, 501 US 429; US v. Baker, 01-16585 (2002)
  • Investigatory Detention/Brief Stop (Tier 2):  An officer must have RAS to make an investigative stop.  The suspect can only be held for a reasonable amount of time.  Barring any other RAS or PC developed during the stop, the officer must release the suspect once the officer’s initial suspicion has been satisfied and all identification checks have been made.  NOTE:  An officer may handcuff a suspect during a brief stop only when necessary for the officer’s, the public’s, or the suspect’s safety.  The suspect must be advised that they are not under arrest.  An officer may frisk for weapons if the officer has RAS that the suspect is armed and presents a threat.  Case References: Terry v Ohio, 392 US 1 (1968); United Sates v. Arvizu, 534 U.S. 266 (2002)
  • Arrest (Tier 3): An officer must have PC to make an arrest.  The officer should conduct a search incident to arrest.  The officer must take the suspect before a judge and must read the suspect his/her Miranda warning if the suspect is questioned after being taken into custody.

Four Legal Ways to Enter a Dwelling

  • Consent:  Consent can only be obtained from the owner of the property to be searched, someone with valid authority of the property, or someone with valid control over the property (in that order).  Consent can be given verbally or written.  The burden of proving consent is on the peace officer, and consent can be withdrawn at any time (must maintain contact) or may be qualified consent.
  • Warrant/Court Order: An officer can enter a suspect’s home to arrest the suspect if the officer has a warrant for the arrest of the suspect and the officer reasonably believes the suspect to be in the dwelling.  Case Reference: Payton v. New York, 445 U.S. 573 (1980)
  • Exigent Circumstances: An officer may enter a dwelling without a warrant when exigent circumstances exist.  Examples include situations where an officer has to enter in order to prevent death or injury to those inside of the dwelling, to prevent the destruction of evidence, or to prevent the immediate escape of a suspect.
  • Hot Pursuit: The officer must be pursuing the suspect for an arrestable offense.  The suspect must know that he or she is being pursued, and the suspect must be in actual flight.

 

Note:  I first saw this original framework in materials from my agency’s FTO program.  Wally Marchant, then an instructor at the Georgia Public Safety Training Center, is the likely originator of the “2-3-4 Rule”.  I took the original framework and added in the case references and notes to create this format.

Miranda: A Real Fiction

Alphabetically-ordered seating in school generally meant that I had a seat in the back of the room, but that left me free to do as I pleased for the most part; however, the elevated platform used by Mrs. Carol Thomas negated that advantage, and I actually paid attention in her seventh grade civics class. Among the many of her lessons that I remember was the lesson on the Bill of Rights: the first ten amendments to the Constitution enumerating such things as the right to counsel, the right not to be a witness against oneself, the right to due process, and the freedom from unreasonable searches and seizures as well as cruel and unusual punishment. The Bill of Rights was ratified in 1791. They aren’t exactly a secret.

In 1966 the nine wise souls of the Supreme Court of the United States (SCOTUS) voted in a 5-4 decision in the case of Miranda v. Arizona, 384 U.S. 436 (1966), to require peace officers to read what is now commonly known as the Miranda warning to suspects in custody prior to questioning. However, as Messrs Harlan and White pointed out in their dissenting opinions there is no requirement in the text of the Constitution that requires such a warning. The requirement to do so is purely a creation of the court. I repeat, there is nothing in the Constitution that places any requirement whatsoever on the government or its agents to formally advise people of all said rights. The Constitution itself does that, and it did so 175 years prior to the Court’s creation of a real fiction.

Please note that I am by no means arguing against these rights as such a presumption would be false. I’m just pointing out that all the Court did in Miranda was create a procedural step that has spawned four decades worth of court cases. Earlier this year, SCOTUS handed down its decision in Berghuis v. Thompkins (docket 08-1470). In this decision, the Court held that individuals must explicitly invoke their right to silence. Headlines and talking heads have proclaimed this decision as “turning back the clock” on legal protections and as “trimming Miranda rights”. Well, this is just a nit that I have to pick. Miranda didn’t and doesn’t grant or guarantee rights. It’s the United States Constitution that enumerates our rights. Again, the Court with Miranda created nothing but a procedural hoop through which to jump. Even without said warning, the rights are still there and can still be invoked by the individual. If the SCOTUS wiped out Miranda completely, those rights would still exist.

Notes:

-Noted civil rights attorney Thurgood Marshall argued the case on behalf of the government, thus he argued against the Miranda procedure. Marhsall, who later become a SCOTUS Justice, was the lawyer who successfully argued in Brown v. Board of Education, 347 U.S. 483 (1954), against the “separate but equal” policy that allowed racial segregation in schools.

-The defendant in this case, Ernesto Miranda, was convicted of burglary while in high school. He served time on numerous offenses and was later dishonorably discharged from the Army after repeated AWOL and peeping tom offenses for which he also served time in a military stockade. In the case in question, he was arrested, confessed to, was positively identified by the victim, and was later convicted of the rape and robbery of an 18 year old girl (he couldn’t be positively linked to other victims abducted and raped from the same area). A warning very similar to the wording created by Miranda was printed on each page on which he wrote his confession. After SCOTUS overturned his conviction, he was re-tried without his confession being entered into evidence. He was convicted and sentenced to over 20 years in prison but was paroled a few short years later after which he made money by selling autographed Miranda cards. He was killed in a bar fight in 1976.

–Miranda is often misunderstood. A suspect must be both in custody and being asked investigatory questions before it is required. Other than that, a peace officer may ask any question they so choose to anyone not in custody. Also, a peace officer with probable cause may make an arrest and never ask any questions of the suspect thus never crossing the threshold of Miranda being applicable.

A Word on Judge Jones

Judge Steve C. Jones, a Superior Court judge in Clarke and Oconee Counties, has been nominated for a position on the United States District Court for the Northern District of Georgia. This news is both outstanding and disappointing at the same time. Judge Jones will be a wonderful addition to the federal courts, but sadly, it means that we will lose him locally.

I would like to pass along some information about Judge Jones. A few months ago, he presided over an aggravated stalking case in which the defendant chose to represent himself (he had a legal advisor on hand). Due to the defendant’s lack of familiarity with court room procedure, what normally would have been a two or three day trial turned into a five day trial with three of those days the trial lasting past 8:00PM. Obviously, this was a very taxing experience for the jury.

I have always respected Judge Jones, but in the minutes after the trial concluded my respect for him reached a new level. He printed out a copy of the Sixth Amendment to the United States Constitution and passed it out to the jurors. For those of you that do not remember from your middle school civics class, the Sixth Amendment guarantees the right of a defendant to a trial by an impartial jury.

After giving each juror a chance to read it, he then talked of the other rights guaranteed in the Bill of Rights and said that if the right to a trial by jury can be sacrificed then all of the other rights can be sacrificed as well. It showed that he is a man that respects the Constitution as a guiding principle and not an anachronism. It shows that he believes in the rights of the individual and not simply the textual context of law.

This is the type of judge that I want to see on the federal bench ruling on Constitutional issues and applying the Constitution to the cases brought before him. May his confirmation be quick, and may his tenure on the federal bench be long!