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