Tuesday, June 16, 2015

Free in Kentucky: Analysis of Police Shooting in Louisville (may sur...

Free in Kentucky: Analysis of Police Shooting in Louisville (may sur...: If you ask the wrong question, you’ll get the wrong answer. And if the answer to your question sucks, you get a new question.  That’s a...

Analysis of Police Shooting in Louisville (may surprise you)

If you ask the wrong question, you’ll get the wrong answer.

And if the answer to your question sucks, you get a new question.  That’s a lawyer trick.

This week I saw a video of a police shooting in Louisville (link below).  It appears that the officer pulls up alongside a man – who seems a little stumbly – and questions him.  The encounter is brief and the officer does not touch the man.  The man walks off screen, then comes back toward the officer.

As reported by WHAS11, Kenneth Williams, who said he saw the shooting, thought the use of deadly force was unjustified. "He was drunk. [The officer] could have maced him. He could have used his stun gun. He didn't have to shoot that man. He wasn't no threat."

I disagree with Mr. Williams – after watching the video it’s impossible to say that the man was “no threat.”  Rather, the video shows the man come back at the officer with a metal pole.  The man swings the pole and strikes the officer.  There is no doubt that the officer was not the first physical aggressor.  There is no doubt that the man struck the officer with the metal pole.  And it would be very difficult to argue with a straight face that someone swinging a metal pole is not a threat. 

This blog post is about picking the right question to ask.  So now let’s choose our question.  I’ll pose 3.  Question 1) Could the officer have used a less lethal means of force?  Question 2) Is it possible the man had a gun or other deadly weapon?  Question 3) Did the officer have evidence that the man was armed and dangerous – and did the officer reasonably think deadly force was appropriate?

Now let’s answer the questions given the video we have (which I am sure will NOT be all the evidence that comes out with regard to this case).

1) Could the officer have used a less lethal means of force?  Sure.  The officer could have reached for his taser or mace (Assuming he is given mace.  Some departments are in transition on that at this time.) and deployed that at the man.  Luckily for the officer, this question is not the legal standard.

 2) Is it possible the man had a gun/deadly weapon?  Yes.  And in this case, a metal pole could be considered a deadly weapon.  How many strikes would it take to kill the officer?  If he was struck in the head with enough force, maybe one strike, right?  So it’s possible that if the man got in another hit, the next blow could kill the officer.  But let’s assume the man doesn’t have a pole.  Let’s assume he came at the officer without anything in his hands.  The answer to our question, “is it possible the man had a gun/deadly weapon?” is still “Yes.”  Because anyone who is wearing clothes could be concealing a deadly weapon.  But that doesn’t mean police have carte blanche to kill anyone wearing clothes.  Luckily for society, this question is not the legal standard.

3) Did the officer have evidence that the man was armed and dangerous – and did the officer reasonably think that deadly force was appropriate?  This question, number 3, is the closest of the 3 to the real legal standard for when deadly force can be used by an officer.  The answer to our 2-part question is Yes, the officer did have evidence that the man was armed and dangerous.  And in fact, the man was willing to use said weapon against the police officer.  Concerning the second part of the question, “did the officer reasonably think that deadly force was appropriate?” we would have to ask the officer.  But I bet he would respond affirmatively.  Is that reasonable?  Probably.  Unfortunately, sometimes less lethal means of force don’t subdue a person who is attacking a police officer.  I’ve seen times when someone got maced and continued to act belligerently.  The same with tasing. 

In this situation deadly force didn’t have to be used.  But if I am trying to be objective, I think it was acceptable under the law.

The legal standard for use of force is a “plus one” analysis.  If an officer believes you are uncooperative and the officer legally has the right to tell you to do something (for example, “put your hands on the car, you are under arrest”) the officer should first use verbal commands.  “Sir, you need to put your hands on the car now.”

If the person is uncooperative verbally or physically, the officer can use “plus one” force.  Let’s say the officer says “put your hands on the car.” and you just stare at him, respectfully uncooperative.  At this point the officer can grab your shoulder and steer you to the car.  If you jerk away – the officer can use “plus one.”  At that point the officer could put you in an arm bar, for example, and take physical control of you to effectuate the arrest.  If you resist, they can take you down.  If you strike, they can hit you or use a taser.  Get it?  They can use one more level of force than you have presented, in order to make a lawful arrest.

The best indicator for the acceptable use of deadly force is this question, “Did the officer have evidence that the man was armed and dangerous – and did the officer reasonably think that deadly force was appropriate?”

I’m a criminal defense and civil rights lawyer.  I sue police for using force inappropriately.  I can tell you that police misconduct and brutality do happen and they happen in our own backyards.  Police need to be held to the highest level of professional conduct – because when they make mistakes, people can die.  But in this case, I cannot say that this officer should be held to any criminal or civil penalties for the use of a firearm on a man who attacked him with a deadly weapon. 

And to my clients, I would say that attacking a police officer with a metal pole is a good way to get shot.

Monday, January 5, 2015

Free in Kentucky: So...Cars are Driving Themselves. Am I Out of a J...

Free in Kentucky: So...Cars are Driving Themselves. Am I Out of a J...: I’ve been talking to anyone who would listen about how cars will be self-driving in the future.  The concept is fascinating and the time is...

So...Cars are Driving Themselves. Am I Out of a Job Now?

I’ve been talking to anyone who would listen about how cars will be self-driving in the future.  The concept is fascinating and the time is nigh.  Audi is the first company (that I know of) to put one on the public roads.  Last year they tried letting it drive itself to the Consumer Electronics Show in Vegas, but the system failed and the driver had to take over.  This year they’re trying it again.

Soon we will enter the car, say “take me home” and it will!

Audi calls the technology "Piloted Driving," and has been showing a good deal of advancement with the technology. Now Audi says the sensors in the car are "production ready" which should both excite you and scare the bejeezus out of you.

How does it work?  The A7 comes with long-range forward radar (previously used for adaptive cruise control), two rear-facing and two side-facing radar sensors, a laser scanner (LIDAR) and a 3D camera also look forward, while four smaller cameras monitor the front and rear views from the corners of the car.  The information from all these sensors and the car's GPS location get processed by an onboard computer, which can control braking, acceleration and steering.  The system will work from 0 to 70 mph, but when the car approaches an urban area it will alert the driver to take over manual control. If the driver does not take over within a set amount of time, the car will turn on its flashers and pull over to the shoulder.  While on the highway, the A7 can initiate its own lane changes and passes.*

This is gnarly because it’ll be the wild west of legal gray areas for DUI and Personal Injury law.  If your car is driving itself, can you be held accountable for “operating” the vehicle?  What about insurance rates!? – will they decrease for a decreased window of liability due to operator error?  How will this affect dramshop liability for restaurants and bars who over-serve alcohol to people?  At what point will it be reasonable to assume that people don’t drive cars – that cars drive cars?

I don’t have answers for the questions I’m presenting.  I just like asking the questions. 

Anyway, it’ll be interesting to see how the Audi A7 makes its journey to Vegas.  Check it out and watch the future unfold.

*All taken and paraphrased from http://www.cnet.com/news/audis-550-mile-self-driving-gamble/

Monday, December 22, 2014

I Get Reviewed by 8th Graders

       You can find lots of lawyer reviews online.  Reviews usually come from clients or peers of said lawyer.  But today I got a package of about 25 letters written from 8th graders, where I gave a talk to a middle school.  I’ll share their reviews.  Here are some choice snippets-

“When I first saw you enter the classroom I thought your presentation would be boring.”

(different child) “It was way more interesting than I thought it was going to be.” [clearly my first impression was ‘boring old guy in a suit.’]

“Anyway I also think that you did a nice job teaching us how to mess with people’s minds.  Then I thought it was pretty cool how you can defend people who do bad stuff.” [we may have been on 2 different wave lengths.]

“I was kind of scared but also impressed.” [I don’t know how to react to that.]

“I hope my classmates weren’t so mean to you or anything.” [they were not.  thank you for the concern.]

About the cases I have lost: “I don’t think that’s so bad at least you tried your best.” [thanks, kiddo]

“I feel great because knowing all these new things about being a lawyer was pretty cool.”

“Does your boss and co-workers clap and congradulate you when you win a case?” [unfortunately, they do not clap for me.]

About Framing the Issue: “I learned that changing the question to make a better argument is a good strategy.” [! bingo.]

“When I asked you “How do you know if that person is inacent or guilty” you didn’t answer my question.”

“You made a major impact on me.”

“I learned that not being guilty and being innocent are two different things.” [! bingo, again.]

“It was a easy grade and all I had to do was pay attention.” [glad I could help]

(from a child in the class, not a teacher) “I think you made a very good impression on the class because they have never been that respectful to a visitor ever.”

“You have inspired us all to become very successful in life like you.” [aw.]

So my Monday is going pretty well.  Hope yours is, too.

Monday, December 15, 2014

Overcriminalization and Excuses for Police Misconduct

     Another attorney, Shane Benson, shared an article this week from the Washington Post, which stated, "Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes."

This is my response to Shane and that article.  It will not be solely responsive to the issue of overcriminalization, but will give you some fine examples from our great Bluegrass State.

These days the issue of police brutality/over-militarization/police misconduct seems to be omnipresent.  Good.  Regardless of your position, I’m glad the discussion is open.  We should talk about this.  It’s good for us. 

For those of us who live in the trenches of civil rights litigation, we usually have pretty strong opinions on the subject.

Inevitably in the conversation about police misconduct, you hear one or both of these things: 1) “If you don’t do anything illegal, you don’t have to worry about the cops.”; or  2) “[police officers] have to have officer safety as a #1 priority.  You never know if somebody might have a weapon.”

Let’s start with #1. “If you don’t do anything illegal, you don’t have to worry about the cops.”

First, the statement is patently and objectively false.  I’ve represented multiple clients and collected thousands and thousands of dollars in settlements because police stopped/ searched/ detained/ arrested/ used force on someone who wasn’t doing anything illegal.  I’ve also represented a slew of clients who were arrested and were genuinely Not Guilty of the crimes for which they stood accused. 

Police officers are people just like me and you.  They make mistakes like we do.  But their mistakes can be more dangerous.

Second, the statement is terrifyingly misleading and shifts the focus of a discussion from freedom to safety.  Essentially, the statement “If you don’t do anything illegal, you don’t have to worry about the cops.” is a way of saying, in the negative, “Cops save us from criminals. And I’m not a criminal so that’s good for me.”  

If you believe that we should give up freedom for safety, fine.  But I’m not signing up for that.  Benjamin Franklin said “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”  Giving up liberty is not safe in the long run.  It’s a lot more dangerous than the criminals among us.

Which brings me to the next point.

Third, everyone does illegal things.  We are all criminals.  Show me one person who has never violated the law.  One.  To say that only criminals need to worry about police misconduct is to say that all of us need to worry about police misconduct.  Stop assuming that criminals are bad people who deserve whatever punishment a police officer decides to dole out on that particular day, and start understanding that we all break the law at one time or another and that people’s Constitutional Rights matter.

Let me tell you about the ways you break the law.

Aside from the slew of people around us (not you, of course, you would never do these things) who may have had a few drinks and driven, smoked a joint in college, taken something that wasn’t theirs or written a bad check, the vast majority of people around us violate laws, regularly, sometimes without any knowledge of their criminal conduct. 

Do you or someone you know have a pill container to keep your prescription medicine in – for vacation or for normal daily use?  That’s illegal.  You can’t even separate some pills into baggies to keep in your car or at work for “use as needed.”  Unless you ALWAYS keep your prescription medication in the original container, it’s a class B misdemeanor.  KRS 218A.210.  I, personally, am a criminal.  I’ve taken multiple prescription pills in a baggie on vacation.

Have you or someone you know ever worked on Sunday in Kentucky?  That’s illegal.  Pursuant to KRS 436.160, that’s a violation of the law (even though most states have long abolished these type of laws).  I, personally, am a criminal.  I work every Sunday.

Did you know that dentists, chiropractors and doctors who advertise are criminals?  KRS 438.065 expressly prohibits advertising or soliciting by those in the “healing arts.”  They can get up to a YEAR IN JAIL for that. 

These are just a few examples of laws that we all break regularly – sometimes with no conscious decision to violate the law.

So don’t let someone in this type of conversation look down their nose and pretend they’re not a criminal.  These people, these criminals like us and among us, are the ones saying “If you don’t do anything illegal, you don’t have to worry about the cops.”  Snotty bastards.  Don’t be so arrogant to think the legal shortcomings of everyone else are in some way worse than your own.  Everyone has their own reasons for violating the law.  Some people get away with it and some people “have to worry about the cops.”

You know what the crazy part about it is?  I really don’t have to worry about it.  I don’t have to worry about my criminal activity.  These dentists – the ones advertising on television and billboards – they are committing a crime a full class higher than possession of marijuana.  They don’t have to worry about it, either.  Do you think they’re hiding their criminal activity in an Altoids tin beneath Wendy’s napkins in their glove compartment???*  No.  They commit a crime that could land them a year in jail – and they literally advertise it.  You know what?  They don’t have to worry about police, either. 

Why do you think that is?

Let’s move on to #2.  “[police officers] have to have officer safety as a #1 priority.  You never know if somebody might have a weapon.”  Both of those statements are true, and neither are an excuse for police to be held to anything other than the highest level of accountability.

Police officers do have to consider officer safety to be the #1 priority.  Absolutely.  They need to get home to their families just like I do.  Which is why we allow officers to use force, even deadly force, when circumstances allow. 

But let’s not start spitting out the phrase “officer safety” as an excuse to refrain from discussing whether the circumstances allow.
Being a police officer is a dangerous job.  And the good ones are to be highly commended (and honestly should be paid twice what they’re paid).  The bad ones should be cut out like a cancer.  I don’t know why this statement makes people uneasy.  I’m a lawyer.  And when I hear about a lawyer in this city who swindled a client out of money or committed a heinous violation of the ethics rules, I think “that guy/gal gives us a bad name.  I wish they weren’t a lawyer.”  Police officers, however, are a brotherhood.  It is the FRATERNAL order of police.  They back each other’s plays.  In my experience, I have found them much less likely to support cutting out the bad members of their occupation.  That’s unfortunate.

That brings us to the second part of the phrase “[police officers] have to have officer safety as a #1 priority.  You never know if somebody might have a weapon.”  Let’s talk about the “weapon” part.

This is an odd phrase.  “You never know if somebody might have a weapon.”  It’s like saying “It is what it is.”  You really haven’t said anything at all, but for some reason people hear it and think the discussion is over.

Obviously it’s true.  If the person you are dealing with is wearing any clothing at all, it is possible that they could be hiding a weapon.  No doubt.  Fortunately for those of us who give a damn about civil rights, the question of whether police brutality is acceptable doesn't hinge on whether the person was wearing clothes.

The question for determining how much force can be used is not “could the person have been hiding a weapon?”  If an officer frisk searches someone or used force solely because a person “may have had a weapon” the question is “Did the person give the officer any reasonable, articulable suspicion that they were armed and dangerous?”

The question is not: “Could they have had a gun?”  The question is: “Is there any evidence that they had a gun?” 

One means an officer has justification to engage the subject.  The other gives a police officer carte blanche.

In short, I’m glad we’re talking more about police misconduct.  I’ll leave you with this thought – Police officers have an incredibly difficult job.  Thank God for the good ones.  We should make sure they are commended.  And as for the bad ones – there’s nothing more dangerous than a dirty cop.  No criminal in the world is more dangerous. 

If we don’t cut them out, none of us are safe.


*Don’t hide your weed there.  They always look.

Thursday, December 11, 2014