Thursday, December 17, 2015
Free in Kentucky: Published KY Supreme Court Roadblock Decision!: Today we got a beautiful piece of artwork delivered by the Kentucky Supreme Court in the Commonwealth v. Billy Cox , a published opinion ch...
Today we got a beautiful piece of artwork delivered by the Kentucky Supreme Court in the Commonwealth v. Billy Cox, a published opinion changing roadblock law in this great Bluegrass State of ours.
This case was one of the very first cases I tried as a first year lawyer. So it’s been about eight years in the making. And I lost the trial, so I’ve had a fire burning to turn that loss into a “W.” Now that’s happened. Also, I argued the case against Joe Mattingly – the Marion County Attorney, who is an exceptionally bright individual and a class act. So it was a pleasure to work the case.
My argument was this: When roadblocks are constructed by police, they need to be done to take the discretion out of the hands of the officers in the field. That means the start and stop times should be determined in advance, so the cops performing the roadblock have no choice in the matter. For example, “Here comes a white guy…here comes a white guy….here comes a white guy…here comes a Mexican! The roadblock starts now.” Also, there were some noncompliance issues with this particular roadblock. For examples, the officers weren’t wearing safety vests, and no advance warning signs were placed out before the roadblock.
To be honest, I didn’t concentrate really heavily on the advance warning issues. Because under previous Kentucky caselaw, courts kinda didn’t give a damn about that.
They will, now. Which is nice.
Essentially, the Supreme Court did take some issue with the start and stop times (“undetermined durations may be symptomatic of broad discretion” p. 8). But more importantly, and to my pleasant surprise, the Court found a huge problem with the failure to provide advance notice of the roadblock.
The concurrence provides some spectacular language, which I believe, boldly changes roadblock law in Kentucky. Previously, advance warning signs (like “Roadblock Ahead”) were only suggested and nearly never used. However, they will now be absolutely necessary for a roadblock to be considered reasonable.
And, crucial to this determination, is the reasoning that roadblocks need to be a CONSENTUAL encounter with police. THAT – is big news. This is a major change for Kentucky caselaw. Here are some gems from the concurring opinion on that issue:
“At the heart of that reasoning is the fact that with the presence of a sign warning of a road block ahead, if a citizen proceeds to the roadblock, he has functionally consented to the ensuing encounter with the police. It is this functional, or implied, consent that allows the roadblock stop to be reasonable despite the absence of a warrant or any individualized, articulable suspicion of criminal activity.” p. 12.
“By the same token, if proceeding to the roadblock serves as consent, then turning away from the road block is simply not consenting, and is the equivalent of requiring law enforcement to get a warrant if they wish to stop your vehicle, absent some other qualifying fact such as observable (plain-view) illegality. There is significant clarity in this reasoning that leads to a further conclusion: the purpose of the restrictions and the notice requirement is to allow a citizen to make an informed choice about whether he submits himself to the roadblock. What other purpose is there for a sign warning that a road block is ahead? It is ludicrous to say that the warning is for informational purposes only. The driver will have the information soon enough when he comes upon the road block. And how does simply knowing that a road block lies ahead help the driver? Obviously people are given information so that they may do something with it. Regarding a road block, that information is for the purpose of allowing a citizen to choose not to consent to a warrantless seizure.” p. 12-13.
Essentially, the law of Kentucky is now that you can avoid a roadblock if you don’t want to engage with police officers. Previously, that was not allowed – and your avoidance of the roadblock was considered, in and of itself, to be reasonable suspicion to pull you over.
It’s a pretty case. And if you’re a law nerd like me…or if you just give a damn about your individual liberties…check out the full opinion at:
Wednesday, September 2, 2015
Free in Kentucky: I Get Reviewed by Kids, Part Deux: This past week I got the privilege of playing the defense lawyer in a Jury Trial reenactment at the Kentucky State Fair. The organi...
This past week I got the privilege of playing the defense lawyer in a Jury Trial reenactment at the Kentucky State Fair. The organizers chose a trial loosely based on a case I worked on in real life, assisting the feared and famed, Honorable Steve Romines (the Defendant was a Doctor who struck his wife with a boat and killed her – he was charged with Murder).
I played the part of “Defense Lawyer” which was obviously not a stretch for me. Kinda like when Howard Stern played himself in Private Parts or when Seth Rogan plays any character in any movie.
At the trial reenactment, a law class from Silver Creek High School came to watch – and some actually got to participate. A group from the class got to serve as the jury. They found my client “Dr. Hardy” Not Guilty on Murder and Guilty on Reckless Homicide (exactly how the real case turned out). One of the juries gave my client 1.5 years in prison – another group gave him 3 years to serve (both a little better than in real life, where our client took 5 years).
After the event, the students took the time to write me letters. Most were general “thank you” letters. Others took the opportunity to review me as a lawyer. Here are some of their comments…
“The part you played was realistic.” I am not sure this student understood that I was a real lawyer.
“You were easy to hear.” Yeah. I’m loud. I get it.
“You did a great job in persuading the jury that the husband was innocent.” We’ll talk about the difference between “Innocent” and “Not Guilty” later. But, thank you.
“Even though your client did end up with jail time, it was still better than life in prison.” TRUF.
“Your defense case was excellent and I believed everything you said. Your honesty made me realize and think about how serious these things are and how you can change someone’s life.” Aw thanks, dude.
“You rambled on a little more than I thought you should have. Also, if you ever need fashion advice, don’t be afraid to make a call! It could help you win a case.” No shit, that’s a real comment from a kid!!!!
“You did a great job in undermining the witnesses.”
“I thought you did a tremendous job representing Dr. Hardy. I thought you completely controlled the trial and beat the prosecution.” That made my day, buddy. Thank you.
This concludes “I get reviewed by kids, Part Deux.” Hope you got a kick out of the kids’ comments. I sure did.
Tuesday, June 16, 2015
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...
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...: 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...
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/