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

Free in Kentucky: Holes in the Kentucky Implied Consent Law

Free in Kentucky: Holes in the Kentucky Implied Consent Law: At the heart of Implied Consent is a balancing act.  We need to walk that thin line between making the streets safe and taking dangerous pe...

Holes in the Kentucky Implied Consent Law

At the heart of Implied Consent is a balancing act.  We need to walk that thin line between making the streets safe and taking dangerous people off the road - and ensuring that people still have a 5th Amendment Right not to incriminate themselves.  It's nice to have rights.  We should care about that.

When someone is arrested for a DUI in Kentucky, an officer will most likely ask them to submit to a blood, breath or urine test.  Before the test is given, the officer should read the Kentucky Implied Consent law to the newly arrested individual.  Specifically, under KRS 189A.105, an officer is required to read a set of three (3) paragraphs about Kentucky law on refusing the test.  The portions we are going to discuss today include:

 “1. That, if the person refuses to submit to such tests, the fact of this refusal may be used against him in court as evidence of violating KRS 189A.010…and if the person refuses to submit to the tests and is subsequently convicted of violating KRS 189A.010(1) then he will be subject to a mandatory minimum jail sentence which is twice as long as the mandatory minimum jail sentence imposed if he submits to the tests…and
3. That if the person first submits to the requested alcohol and substance tests, the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.”

There are a couple of problems with the above language (which is copied verbatim from the Kentucky Implied Consent Statute).  1) Officers are threatening people with jail time for a refusal.  But the truth is that there is no mandatory jail time for a first time refusal.
This is kind of a big deal.  Police are telling people that if they refuse they “will be subject to a mandatory minimum jail sentence” -- and that is simply not the truth.  Refusal is an aggravating circumstance for a DUI 2nd, 3rd, or 4th.  Refusal is not an aggravating circumstance for a First Offense DUI in Kentucky.
When officers read the above Implied Consent Statute, they threaten arrestees with jail time for refusing.  But, if convicted, they would not actually be subject to mandatory minimum jail time.

Do you think this might have the effect of persuading more people to incriminate themselves?

2) Sometimes officers change the words to the Implied Consent Statute.  In my own personal experience defending these cases, sometimes the cop says “your refusal will be used against you in court” instead of “your refusal may be used against you in court.”  The wording change is subtle.  But it makes a world of difference. 
Note that the word change makes the consequence more harsh.
In the actual statute, a jury may infer a refusal as evidence of guilt.  But in the altered version, a jury will, in fact, believe that a refusal makes it more likely that the person is guilty.  Faced with harsher consequences, a person who is on the fence about submitting to a test may submit (even if they have previously been advised by counsel to refuse).
The last problem with the Kentucky Implied Consent Law that we’ll discuss today is 3) the right to an independent blood test is frequently trampled by law enforcement.  The KRS provides that if someone submits to an officer’s test, “the person has the right to have a test or tests of his blood performed by a person of his choosing described in KRS 189A.103 within a reasonable time of his arrest at the expense of the person arrested.”
The first problem with this subsection is that it carves out a statutory “right” but then hinges it on the person’s ability to pay for the test.  Either it’s a right or it isn’t.  And in this country, rights don’t belong to only those who have money.  They belong to everyone.  That’s how rights work.
The second problem is that some police officers don’t make reasonable efforts to provide the arrestee with the right to a blood test.  I’ve heard them say things like “you can get a blood test if you want but we’ll take you to ____hospital___ and you have to have $400.00 in cash” effectively talking the person out of an independent test.  In another case, after being read the Implied Consent, my client said “I don’t know how I would pay for it – my wallet is in my car.”  The officer did nothing.  Obviously, if a police officer wanted to make reasonable efforts to afford this right to the arrestee, they could take the person to their car at police impound and retrieve the wallet.

In short, the problems with the Kentucky Implied Consent law are numerous – both in black and white and in their application through law enforcement.  At this time, the Kentucky Legislature (and courts) are unwilling to do anything about it.  But awareness is the first step.  Hopefully this will provide some awareness.

Have a great week.

Greg Simms – 502.618.4949

Monday, November 17, 2014

Sunday, November 16, 2014

Gary Carver and the $96,000.00 Police Brutality Settlement

There was a news story this past week about a police brutality/false arrest case I settled a few weeks ago.  The story was hastily written and contained some incorrect statements of the case.  So I’d like to take this opportunity to straighten it out.  Also, some of the comments attached to the story seem to indicate that people think $96,000.00 was an exorbitant amount for this case, and that “taxpayers” shouldn’t have to pay it.  I’ll address that as well.

This post is written with the permission of my client, Gary Carver.

            First, the WDRB story indicates “Metro Government has paid $96,000 to settle a federal lawsuit filed on behalf of a man who claimed he was unreasonably searched, assaulted and then wrongly arrested by two Louisville Metro Police officers in 2012. The city on Oct. 24 issued a check to Gary Carver and his girlfriend, Amanda Price, settling a lawsuit stemming from the arrest of Carver on Jan. 12, 2012, and a vehicle stop of Price two days later.”
            Those dates are wrong and it is not true that the stop of Amanda Price happened two days later.  The false arrest and brutality of Gary Carver happened January 14, 2012, and the illegal stop of Amanda Price happened April 4, 2012.
            WDRB also stated, “Gregory Simms, an attorney for Price and Carver, did not immediately return a phone call seeking comment.”  I’m not sure why they wrote that, because I was in contact with WDRB on multiple occasions during this incident.  My contact person was Natalia Martinez.  We exchanged numerous phone calls and eventually at least 6 emails, wherein I answered all of her questions and provided her with a slew of court documents.  In fact, at the end of the WDRB article, they reference documents that I sent them.  So it burns my toast a little that they say I didn’t return a phone call.
     The story also says that Carver "tensed up and "began pulling away," grabbing Trevino's leg and causing both officers to fall, according to the officers." This is not true, the police never said Carver grabbed a leg.  Rather, Trevino actually said that he is the one who grabbed Carver's leg.  That's pretty important.  

Here's a link to the full WDRB story:

           Regardless, this is the real story of Gary Carver’s interaction with the police: 

Gary Carver is one of many tall, thin, black men who live in Louisville, Kentucky (no citation).  On January 14, 2012, at approximately 2:00am, Gary Carver was walking on Lonsdale Avenue toward his mother’s house.  Carver was carrying a backpack of belongings.  Both police officers involved in this case concede that, as he walked down the street, Carver was engaged in no illegal activity. Suppression Hearing, July 18, 2012 (hereinafter “Hearing”) at 11:38:02, and 12:20:50; Deposition of Officer Meek (hereinafter, “Meek”), P. 56, 9-13.  
Carver was carrying a digital tape recorder on his person, because (as of January 14, 2012) he had been stopped nine (9) times by police officers in the preceding year when he was not engaged in illegal activity. Hearing. at 12:11:32.
        Although the Louisville Metro Police Department (hereinafter, “LMPD”) agrees that Carver was engaged in no illegal activity, Carver was stopped by officers Charles Meek and Michael Trevino.  According to the officers, they had received a call regarding a domestic violence altercation, and they were responding to the call and searching for the suspect.  Officer Meek testified that he was taught to include all facts of significance on a citation, and Meek filled out a citation for the arrest of Carver. Id. at 11:37:10.  Although Meek was taught to include all facts of significance on a citation, and the citation Meek wrote contains no description of the alleged domestic violence perpetrator, Meek testified that the alleged victim of domestic violence gave him the following description: “Tall thin black male wearing a dark shirt, dark pants, short dreads and he was carrying a backpack.” Id. at 11:26:12.  The woman who gave the description did not give any indication that the assailant had a “weave, extensions or any kind of fake hair.” Id. at 11:50:12.  Meek testified that once he received the description, he shared this description on the radio with other officers, and specifically in order to let Officer Trevino, his partner, know who to be looking for. Id. at11:26:35.
            Gary Carver does not have dreadlocks, and did not have dreadlocks on January 14, 2012 when officers approached him.  The police concede that on the night they approached Carver, it was readily apparent that he did not have dreadlocks. Id. at 11:39:49; Meek, p. 58-59, lines 23-9.  Additionally, the officers in the case have changed their stories about the description of the domestic violence suspect. 
On the night of the incident, Meek took a report indicating the description was that he was an 18 year old black male, 5-10 and 160 lbs and, “HAIR LENGTH - Short; BUILD - Thin; TEETH - Straight; HAIR FACIAL - Clean Shaven” Incident/Investigation Report, p. 2.  During a suppression hearing, the description given by Meek of the alleged domestic violence suspect was “Tall thin black male wearing a dark shirt, dark pants, short dreads and he was carrying a backpack.” Hearing, 11:26:12.  When Meek gave his deposition, the description changed again.  This time, the full description was, “about 6 feet tall, thin, had dreads, had some facial hair, had a dark shirt.  I believe she said he had dark or dark khaki pants on.”  Meek, p. 30, 17-21.
            Carver is 6 feet tall.  He is currently 30 years old – 10 years older than the teenage kid the police were supposedly looking for on the night in question.  On the night of the incident Gary Carver had facial hair, and had shoulder length hair, which was straight (not braided or in dreadlocks).  Over time, Meek’s physical description of the domestic violence suspect has transformed more and more into to a description that more closely resembles Gary Carver.  The alleged suspect has grown facial hair, grown 2 inches taller, and grown longer hair.  The suspect has gained and lost a backpack. 
            Gary Carver does not and did not fit any of the descriptions given by the police at any time.
            Meek agrees that his memory of the night of January 14, 2012 was more fresh on the night of January 14, 2012. Meeks, p. 23, 3-6.  Thus, the Incident/Investigation Report written the night of the incident should be most accurate. 
The facts are that the domestic violence suspect was a 5’10” black male, with short hair, and clean shaven.  Incident/Investigation Report, p. 2.  Carver was 2 inches taller, had shoulder length hair, facial hair, and was 10 years older than the 18 year old suspect.  In addition, Gary was carrying a backpack, which was not included in the description.  To state plainly, at the time of the incident, Gary Carver was a black male in the vicinity, and the alleged suspect was a black male in the vicinity.  That is the extent of the commonality.
            Officers seem to indicate that they recall the domestic violence incident and the stop of Gary Carver to be very close in proximity.  At roll call or immediately after (which would have begun at the beginning of the midnight shift and lasted approximately 15-20 minutes) they were dispatched to the run.  Meek, p. 24, 23-24.  The call was an assault in progress. Id. p. 19-20, 24-3.  And the victim indicated that the assailant had literally just walked out the door. Meek, p. 20, 17-20.   Meek’s previous testimony has been that immediately after leaving the domestic violence victim’s home and turning a corner, he saw Carver – whom he thought was the domestic violence suspect.  Hearing, 11:27:32.
            It only takes 6 or 7 minutes to get from the station to the area where the domestic violence victim was interviewed (which is basically a block from where Carver was stopped). Meek, p. 29, 7-14.  By his testimony, Meek would have been at the victim’s home, taken a description, and left the home at around 12:30am.  Meek’s rendition of that fact does not support the timeline herein because his brief interaction with Carver lasted only a few minutes, and Carver wasn’t arrested until 2:00am. The time of the arrest is evidenced on the Citation, written by Meek the night of the incident and attached hereto.  Meek also indicated in his Deposition that the arrest would have been at 2:00am. Meek, p. 25, 7-9.
            The truth is that the domestic violence run had absolutely nothing to do with Gary Carver’s stop.  The run, which occurred hours earlier, is now being offered by Defendant Officers to justify the arbitrary stop of an innocent black man who was carrying a backpack.  The police lied about the description and timing after the fact in a callous attempt to justify violating Gary Carver’s constitutional rights.
            The interaction with Carver supports this theory, in that the police did not confront him in any way whatsoever about domestic violence.  Officers never mentioned the basis for their stop of Carver at the time of the incident.  They didn’t ask one single question about a domestic violence incident.  Although Carver, in a reasonable manner, inquired to the officers as to the reason for the stop, he was met with a barrage of insults, had his person and personal belongings searched, and ultimately was detained and brutalized. 
            Upon observing Carver, Officer Meek spotlighted Carver, and got out of his cruiser.  At this point, Carver immediately started recording the incident using an audio device concealed on his person.  Officer Meek approached him and Meek called out “Eric.” Hearing. at 11:28:40.  The following is a transcription of the audio tape of the incident, in its entirety, as authenticated by Defendant Officer Trevino at the hearing on July 18, 2012:
Officer Meek:  “Eric your name?”
Carver:  “I’m Gary Carver.  What seems to be going on?”
Meek:  “Gary Carver?”
Carver:  “Gary Carver. G-A-…”
Meek:  “Do you have an ID on you?”
Carver:  “It’s at home.  I’m about to go over to my momma’s.  I got my backpack here…”
Meek:  “Over here.”

            (At this point, Office Meek orders Carver “over here” to place his hands on a police cruiser to be searched.  There is no justification for searching him or his belongings at this time.)

Carver:  “But I can prove I am who I say I am.”
Meek:  “Anything on you that you’re not supposed to have?”
Carver:  “No.”
Officer Trevino:  “Don’t open that bag.” 
Carver: “That’s got my stuff in there.  Don’t touch - Don’t touch my stuff.  Hey freedom of the press. Don’t touch my stuff.”

            (At this point, Meek roots through Carver’s backpack, looking for contraband.  Carver has no contraband, and this is an illegal search.  Meek then prepares Carver to be frisked.)

Meek: “Put your hands on the car.”
Carver:  “ I haven’t done a damn thing.  You can check my backpack.”
Meek:  “ID in here?”
Carver:  “No, I left that at the house.  But I do - you can keep checking…”
Meek:  “You have a soc…”
Carver:  “1417 Lynhurst.  Keep looking.  I gots other stuff in there that can prove I say - I who I am.”
Meek:  “What’s your name?”
Carver:  “G-A-R-Y C-A-R-V-E-R.  This is the Ninth time I done been pulled over this year for no damn reason.”…

            (Meek continues to frisk Carver.  Finally, Carver decides to object to the frisking.)

 “Are you finished checking my motherfucking nuts and shit?”

Meek:  “Shut up, man.”
Carver:  “You shut up and you just pulled my fucking hair.”
Meek:  “figure out what’s going on –“
Carver:  “-Hey man hey hey don’t touch my recorder! don’t touch my recorder!”
Meek:  “Stop resisting!”
Carver:  “I’m not resisting!”
Meek:  “Stop resisting!”
Carver:  “I’m not resisting.  I’m not resisting.  I’m not resis- (tape cuts off).”

            According to Officer Trevino, the recording documents a time span from the police’s initial interaction with Carver, and the tape recording continues until the time Carver is taken to the ground by Meek. Hearing at 12:24:01.  The audio recording is documentation of the entire verbal exchange with Carver from the time police called out to him the name, “Eric” until the time Gary Carver is physically searched, assaulted, taken down to the asphalt, and eventually handcuffed.  Any other verbal exchanges alleged in the Defendants’ version of the “facts” are completely fabricated.
            For reasons unknown to the Plaintiffs, the defendant police officers now claim that upon first contact with him, Carver immediately began yelling obscenities.  The audio tape of the incident evidences that throughout the entire incident, Carver cursed only twice – but only after being stopped, frisked, and the officers rifling through his belongings.  When confronted with Carver’s actual reaction to the police initiated contact, Meek admitted that Carver did NOT immediately begin cursing. Hearing, at 11:40:21 (EMPHASIS ADDED).  Any other assertion is falsehood.
            In stark contrast to what the officers claim, when confronted by police, Carver said “I’m Gary Carver, what seems to be going on?” Hearing, 11:28:45.  This type of initial contact is what Meek would refer to as “polite interaction.” Meek, p. 42, 9-14.
            The police agree that they never, at any time, questioned Gary Carver about the domestic violence incident.  Meek, p. 72-73, 2-5; p. 41, 7-13; Hearing at 12:25:06.  The central focus of the stop of Gary Carver was to check what was in his backpack and pat him down.  The Jefferson County District Court, in finding that the police violated Carver’s Constitutional Rights, indicated that the police gave “contradictory testimony” to the tape of the actual incident. Court Ruling, November 16, 2012 in open court (hereinafter, “Ruling”), at 9:27:15.  The officers knew upon their initial interaction with Carver that he did not match the description, and Carver specifically told the officers his name and gave his address.  Id. at 9:28:24.  At that point, the District Court found that the officers should have contacted the police department or did something in order to “make sure that they actually had, in fact, the right person.” Id. at 9:29:00.  If Carver engaged in any disorderly conduct, the “police officers instigated it.” Id. at 9:29:27.
            The defendant police officers agree with the District Court Judge regarding whether they could have taken a moment to figure out whether they had the right suspect.  When asked, “So you can tell that he does not have dreadlocks and he identifies himself as Gary Carver.  Is there anything that you could have done at that point to verify his identification before searching his person or contents of his bag?” Meek’s answer was, “Yes.” Meek, p. 59, 4-9.  “What could you have done?”  To which Meek replied, “Got his name, date of birth, and his social security number.” Id. p. 59, 10-12.
            Instead of doing that, Meek just ordered Carver to “Put [his] hands on the car” in order to be searched.  They grabbed Carver’s backpack and Carver said “Don’t touch my stuff.” Hearing, 11:29:00.  Then the police rifled through Carver’s backpack – although neither officer seems to remember which officer searched it, Meek admits it could have been himself.  Deposition of Officer Trevino (hereinafter, “Trevino”), p. 30, 8-15; Meek, 44, 3-17.  Meek began searching through the bag without permission, and without justification.  When asked if he would have searched the bag if he was Officer Meek, Trevino specifically indicated that he would not have searched Carver’s belongings. Meek, p. 31, 2-13.  Trevino agreed that he would have needed either a warrant, or at least an individualized suspicion that Carver had some contraband or a weapon.  Id.
            The alleged victim of the domestic violence incident did not claim that the supposed assailant was armed with any weapon.  Incident/Investigation Report, generally; Citation, generally; Meek, p. 53, 10-16.  Both officers agree that the suspect they were looking for was not alleged to have been armed.  Meek, p. 49, 5-7.  They also agree that nothing about Gary Carver, individually, made them think he would have been armed.  Meek, p. 49, 2-12.  And he was, in fact, not carrying any contraband whatsoever.  Thus, the pat down search ordered and performed by Meek was an unjustifiable violation of Carver’s 4th Amendment Rights. 
            Most appalling, both Meek and Trevino have lied under oath on multiple occasions in an effort to make the frisk search seem consensual.  First, Meek testified at the suppression hearing that he didn’t order Carver over to the vehicle to be searched.  Meek said that Carver just walked over to the car on his own and put his hands on the car, voluntarily. 
            Officer Meek testified that, rather than being told to assume a position for frisk, Carver volunteered.  Specifically, Meek testified that he asked “What’s in the backpack?”  Hearing, at 11:29:10.  This is false, as the audio recording evidences the fact that Meek never asked this question.  Rather, he went through Carver’s backpack over Carver’s verbal objection (although Carver concedes that after Meek was rifling through the backpack without permission, Carver said “you can check my backpack”).  Meek testified at the hearing that after he asked Carver “what’s in the backpack?” that Carver then “took his backpack off and assumes the position of someone about to be searched.” Id. at 11:29:18.
            This testimony from Meek is conclusively false.  The audio recording evidences Meek ordering Carver to “put your hands on the car.”  Further, Trevino testified contrary to Meek’s testimony; Trevino recalled Meek ordering Carver to put his hands on the car and then Meek conducting the frisk. Id. at 12:16:55.  This is only one of several instances where Officer Meek perjured himself.
            Later, after hearing the audio tape and confronted with proof of the truth, Meek finally admitted that he did order Carver over to the cruiser, in order for him to be frisk searched. Meek, p. 47-48, 20-13.  The audio tape evidences the fact that Carver never said “Go ahead, you’re going to do it anyway” or any version of that statement, as the defendant police officers now allege.  Carver was frisk searched without consent and without justification.  Then the Defendant police officers lied, under oath, in order to justify the violation with consent.
            After Carver was handcuffed, he was then charged with Disorderly Conduct in the First Degree, under KRS 525.055, and Obstruction/Interference with an Officer under KRS 150.090 (the KRS are referenced on Carver’s citation).  All charges were Dismissed by the Jefferson District Court upon the finding that the Defendant LMPD Officers violated Carver’s 4th Amendment Constitutional rights by unreasonably detaining and searching Carver.  Carver did not stipulate probable cause.
            Worse still, is the fact that Officer Meek has sought to harass and intimidate the Carver household because of this case.  Subsequent to the Carver interaction on January 14, 2012, Meek – without justification - effectuated a traffic stop on Plaintiff Amanda Price.  Price is Gary Carver’s girlfriend.  Meek claims the stop was because he couldn’t read the temporary license plate in Price’s rear window. Meek, p. 14, 7-9.  However, Meek agreed that he couldn’t recall anything obstructing the view, like a sticker or excessive tint that would impede his ability to view the tag. Meek, p. 16 4-9.  Also, Meek admitted that once he got out of his cruiser, he could read the temporary tag. Id., 12-14.  The truth is that the tag was clearly visible.  Deposition of Amanda Price, (hereinafter, “Price”) p. 6, 5-6.  The stop of Plaintiff Price was completely unjustified and a violation of Price’s constitutional rights.
            Regardless of the fact that Meek could read the tag outside his cruiser, he continued the stop of Amanda Price.  Once he learned that Price was Gary Carver’s girlfriend, Meek turned off his video camera.  Meek agrees that he turned off the video camera during this stop, and he was reprimanded for manipulating the video device through the LMPD.  Meek, p. 79-80, 12-16.  Meek threatened Price and told her she had a warrant for her arrest; that he could arrest her if he wanted to.  Price, p. 7, 19-23.  He threatened to take her children away from her and place them with the Home of the Innocents. Id.  (The Home of the Innocents is a non-profit organization that provides Social Services to children in crisis.)  But Meek made sure there was no record of this, by turning off his video.  For this disregard for protocol and inappropriate actions, he was reprimanded.
            Officer Meek stopped Plaintiff Price for no legitimate reason, thereby violating her 4th Amendment right to be free from unreasonable seizure.  And once he found out that she was Gary Carver’s girlfriend, he turned off the video system in his cruiser so that he could threaten her and “show her who’s boss” without any record of the incident.  He intimidated a witness.  What Officer Meek did was felonious behavior.

            The bottom line on this case – and the reason it settled for $96,000.00 – is that Gary Carver was walking peacefully to his mother’s house, doing nothing illegal.  The police stopped him, berated him, searched him illegally, and took him to the ground.  They smashed his face to the asphalt, and broke his tooth.  Then the police lied about it.
            That’s why the case was worth $96,000.00. 
            Concerning “taxpayers” having to pay this money – Louisville Metro Government is self-insured.  That means the city has CHOSEN not to have insurance for these purposes (the vast majority of counties and cities in Kentucky do have insurance to pay for police misconduct).  So, yes, this money comes from city funds.  But only because Louisville government has chosen that path.  If you think the city should be insured for these kind of things, you should talk to your councilman.
            As for the people who say the money “should come out of the officers’ salaries” – I don’t disagree.  That would probably be more fair.

            In short, I hope this has helped to put a real name on police misconduct and brutality in Louisville – and I hope it makes people angry.  We should all be angry about this sort of police activity.  Gary Carver was walking down the street minding his own business, doing nothing illegal.  If it can happen to him, what is to stop this from happening to you?

     If you have been the victim of police brutality, call 502.618.4949 and ask for Greg Simms.  The first consultation is free.  

Questions answered in this blog post: How can I find a police brutality lawyer in Louisville Kentucky; Can I sue for False Arrest in Louisville; Which lawyers do false arrest cases and brutality cases in Louisville; Why did the city pay out $96,000 for the Gary Carver brutality case; Which police officers have a record of brutality in Louisville?

Sunday, November 2, 2014

Take em or Leave em: my Suggestions for your District Court Ballot

If you’re looking for advice on who to vote for in the District Court Judge’s races, here are my suggestions:

1st Div: Annette Karem – She has experience and she’s fair.

2nd Div: Amber Wolf – Amber is a prosecutor.  Yes, I’m telling you that you should vote for a prosecutor.  She’s smart, professional, and she’ll be a great judge.  Amber also has a ton of endorsements from organizations across the city.

3rd Div: Matt Eckert – I don’t know much about Matt Eckert.  But by sheer statistical probability, he will have a better approval rating than his opponent.  That is all I have to say about that...

5th Div: Donald Armstrong – He has a ton of experience and he’s a smart, nice guy.  Very professional.

8th Div: David Bowles – David is a former police officer and to be completely honest, he’s a little “tough on crime” for my taste.  But he’s an incredible judge – He’s quick, smart, and he’s on the Judicial conduct committee.  His ethics are second to none.  David Bowles is the right choice for the 8th Division.

11th Div: Gina Calvert – Incumbent Judge Gina Calvert is a no brainer on this one.  She’s an amazing judge and a bigtime victim’s advocate.  And she really gives a damn about being fair.  I’ve seen her protect people’s constitutional rights when it needed done, and I’ve seen her give serious jail time to someone who hurt people in a DUI accident.  She cares about making the right decision.  Great judge.

13th Div: Anne Delahanty – When in doubt, go with a Delahanty.  That’s a good rule for voting on judge’s races.

14th Div: Stephanie Pearce Burke – She’s another no brainer.  Stephanie is a phenomenal judge because she’s not afraid to make some people angry by making the right decision.  She isn’t controlled by the media, or the county attorney, etc.  Stephanie has all the right qualities for a judge; you should keep her.

17th Div: Erica Lee Williams – This is the only race where I feel the need to tell you that her opponent would also make a great judge.  Dana Cohen has everything it takes.  Unfortunately, I wouldn’t be willing to sacrifice one of the best judges in our judiciary in order to put Dana on the bench.  Erica Williams is an absolute model for how a judge should act on the bench – she’s incredibly smart, professional and strong willed.  Erica Williams is the right pick.

If you don't go with my picks - to each their own.  But please vote!

Tuesday, October 7, 2014

Free in Kentucky: Opening Statement for a Rx drug DUI

Free in Kentucky: Opening Statement for a Rx drug DUI: You can click on this link to watch the video: The above link is for an Opening Statement on...

Opening Statement for a Rx drug DUI

You can click on this link to watch the video:

The above link is for an Opening Statement on a prescription drug DUI case.  This is a case where my client was accused of mixing narcotic prescription drugs and driving.  These cases are tricky because they usually get complicated and involve more evidence than a normal alcohol DUI.  For example, you may need to deal with toxicology results, testimony from KSP lab technicians, toxicologists, treating physicians, and medical records from diagnostic tests.  All of these were involved in this particular DUI case.

This is why I love doing DUI cases - every one is different. There's always a new, fun twist.  

Here's my advice (take it or leave it) for Rx drug openings:

1) Right off the bat, you need to highlight the fact that there is no alcohol in the client's system and no illegal drugs.  Repeat this a time or two during the trial and in a closing statement.  

2) If your drugs are in Therapeutic Range, say it slowly, repeat it, and explain what that means in language that sounds favorable to your client.  When jurors hear that this means your client took their medication in a way that was prescribed to them, and tends to show they aren't abusing medication, jurors remember that kind of thing.  And most jurors (especially those on medications) are hesitant to find someone guilty for DUI even if they took their medicine as prescribed - even if they believe the person might have been impaired. 

3) Own the bad facts.  In this case, my client was all over the road and the driving was extremely dangerous.  He came to rest across 2 lanes of traffic.  Obviously that's not good for me.  But I made it good for us by pointing out how odd this is for a DUI.  Normal intoxicated driving isn't that bad - which opens the door for consideration of another medical event.  Also, their expert says he was intoxicated.  You need to frame the issue on something like that.  Tell the jury what to look for - "Ask yourself whether Dr. Davis looked at any of my client's medical history or pharmalogical history."  I know the answer to that question and I know it's good for my client.

4) Own the good facts.  Fortunately for me, my client was actually not guilty.  He had an abnormal EEG after the arrest that showed a brain injury from either stroke, anticholinergic crisis, seizure, or some other medical event.  And he's on the same medications every day without an incident.  All of this really sets the tone for a Not Guilty verdict. 

The jury ended up making the right call in this case and returned a verdict of Not Guilty.  They took about 7 minutes to deliberate.

Anyway, I hope this is at least entertaining - and if you're an attorney, I hope this helps prepare you for a Rx drug DUI opening.

For any questions on Rx DUI cases, feel free to call me at 502.618.4949.

Monday, September 22, 2014

Free in Kentucky: Watch an Opening Statement for a .105 DUI Case

Free in Kentucky: Watch an Opening Statement for a .105 DUI Case: The above link is to an Opening Statement I made in a DUI case in Hardin County (permission f...

Watch an Opening Statement for a .105 DUI Case

The above link is to an Opening Statement I made in a DUI case in Hardin County (permission from the client was given to post online).  This was a "relation back" DUI.  So if you're a lawyer getting ready to try a relation back case, it might help.  Or, if you find courtroom stuff entertaining, it might be something you find enjoyable to hear.  

If you're going to try one of these cases at a jury trial, here's my advice on an opening statement:

1) Be Confident.  If you aren't confident in a situation where your client blew over the .08 mark, the jury will sense that, and they are going to assume your lack of confidence means she's guilty.

2) Don't Exaggerate.  If the officer didn't intentionally falsify evidence, don't call the officer a "liar."  He isn't.  He just made some mistakes.  In this particular case, the officer wasn't a bad guy, he was just incompetent.  The prosecutor in this case, who did a pretty fantastic job overall, made the mistake of exaggerating by saying that "all" of the field sobriety tests would show a sign of impairment and that the evidence would show that the intoxilyzer was "accurate."  Be careful about exaggeration - if you exaggerate, you lose credibility.  Also, as a side note, I broke this rule when I referred to my client's performance on the One Leg Stand as "gymnast" like.  I shouldn't have said that - it just popped out.

3) Own the Bad Facts.  My client drank and drove.  I needed to admit that, but remind them that it is not illegal to drink and drive (if you've done a good job in voir dire explaining the difference between "drinking and driving" and "driving under the influence" the jury will understand this.  You need to own the BAC.  My client had a .105 - and I needed to be up front about that but explain that a BAC of .105 as measured 45 minutes later does not equal a .08 while driving.

4) Own the Good Facts.  We had a few good ones in this case - my client was in charge of physical faculties.  She had a very good performance on One Leg Stand test.  Also, the officer in this case gave me a lot of ammunition - he has no idea how to administer field sobriety tests correctly.

5) Better be less than 15 minutes.  Seriously, don't put people to sleep.

6) Frame the Issue.  Seriously, give them a question to think of during trial.  Some jurors will even write it down.  "Ask yourself as we go through this, has the prosecution proven to me what her BAC was while she was driving."  That issue means I win, because I know the prosecution can't prove this.

On this particular case, this formula seemed to work.  The jury found my client Not Guilty.

I hope you enjoy it, and/or it can be good research for other DUI lawyers.

Friday, August 22, 2014

A Letter to Officer Sunil Dutta: My Thoughts on Ferguson

The following is an open response to Sunil Dutta.

According to the Washington Post, Sunil Dutta is a professor of homeland security at Colorado Tech University and a police officer with 17 years on the force at Los Angeles Police Department.  A few days ago the Washington Post printed an Op-Ed piece written by Dutta entitled “I’m a cop. If you don’t want to get hurt, don’t challenge me.”

This blog post is an open response to Mr. Dutta with regard to his article.

Right off the bat, Dutta lays down some pretty reckless blanket statements.  After giving a brief introduction to let the reader know he is referencing the situation Ferguson, Mo., Dutta states “cops are not murderers. No officer goes out in the field wishing to shoot anyone, armed or unarmed.” 

I think the vast majority of people would agree that generally speaking, police officers are not murderers – and that MOST police officers don’t ever want to shoot anyone.  But to say that “No” police officer goes out wishing to shoot someone is a baseless, biased statement.  I’ve heard officers with my own ears say things like “the pay sucks but at least I get to carry a gun.”  It’s unfortunate.  Some police officers believe that the feeling of power they get by wielding a badge and a weapon is a job perk.  A feeling that can offset negative factors associated with the job.

To say that no person in your field feels a certain way is ludicrous.  That would be like me saying “lawyers are not thieves.  No lawyer goes into a court room wishing to take money that doesn’t rightfully belong to them.”  Or as a Catholic, me saying “priests are not bad people.  No priest goes into a parish wishing to hurt a child.”

C’mon, Dutta – you’re better than that.  There are bad apples in every field.  Failure to acknowledge that problem makes you a part of that problem.  But the bad apples in the Catholic church generally aren’t packing guns.  Most lawyers I know don’t keep deadly weapons on or about their person.  Cops do.  So the bad apples in your field are a lot more dangerous.  You should take a stronger position to cut them out.

Dutta acknowledges at some point that police officers can make mistakes, but he puts the responsibility on citizens to ensure safety.  Dutta’s self described “bottom line” is this: “if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you.”  His point is that the police may, in fact, be violating your rights.  But you shouldn’t stick up for yourself in any way.  Because if you do and the police officer shoots you, that is the path which you have chosen.

As a society we cannot accept Dutta’s proposal.  The only answer we as a society should live with is that police officers, who are supposed to enforce the law, should KNOW the law.  They should be knowledgeable and they should be vigilant to guard the Constitutional rights of the general public.  Those officers in Ferguson, Mo. who threw gas bombs at news vans and arrested reporters for filming – they either genuinely thought they had the authority to do what they did, or they knew better but didn’t care.

Those police officers were at best, ignorant of the law they are charged with the duty of enforcing.  And ignorance and guns (tear gas, tanks, etc.) don’t mix very well.  Dutta’s answer is that the reporters should have been quiet, stopped filming, and refrained from any objection to their rights being violated.

I refuse to accept that, Mr. Dutta.  I don’t trust a government that says you shouldn’t question it. 

Sometimes the problem is a belligerent citizen.  Sometimes the problem is a hothead cop.  But we cannot accept the proposition that people should not question authority.  The right to speak out, nonviolently, is essential liberty.  Those who would give up essential Liberty, to purchase a little temporary safety, deserve neither Liberty nor safety*

Although mortally flawed, Dutta’s article is not completely without merit.

As we skip ahead in Mr. Dutta’s piece, he comes to a couple of ideas that make a whole lot of sense. “[I] believe every cop should use a body camera to record interactions with the community at all times. Every police car should have a video recorder.”  Dutta submits that employing video recording devices on the police officer’s person and in cruisers will reduce the rate of police misconduct and the rate of false complaints.  I couldn’t agree more.

Unfortunately, the KSP disagrees.  And the vast majority of city police stations in Kentucky.  And most County Sheriff departments.

Do you want to save millions in tax dollars?  Do you want to reduce the number of criminals who “get off on technicalities” and make sure that dangerous people are convicted for their crimes?  If so, you should support the mandatory use of lapel and cruiser video cameras.  This situation is win-win.  On the other side of the coin, this will drastically reduce the instances of police misconduct.

The only people who don’t want cameras are dirty cops and criminals (not that I have anything against criminals, per se).

I also agree with Dutta’s proposition that someone being arrested (or having their rights violated) should refrain from showing “anger and resentment.”  If your rights are being violated you should voice your objection in a peaceful, respectful way.  Violence and aggression against a police officer will not end well for the citizen. 

Dutta’s misstep is that he goes too far.  Dutta crosses the line when he faults a citizen for challenging a police officer in a respectful, peaceful way.  “do what the officer tells you.”  “Don’t tell me that I can’t stop you.”

Unfortunately for Mr. Dutta, freedom of speech and nonviolent protest are central to our rights as American citizens.  So don’t tell us not to challenge you, Mr. Dutta. 

That makes you part of the problem.

*Benjamin Franklin