Free in Kentucky: Rapist Brock Turner 6 Months in Jail

Free in Kentucky: Rapist Brock Turner 6 Months in Jail: I don’t like to talk bad about judges.   Not because I don’t have strong opinions about some judges.  I do.  And not because I’m not a ...

Rapist Brock Turner 6 Months in Jail

I don’t like to talk bad about judges.  

Not because I don’t have strong opinions about some judges.  I do.  And not because I’m not a loudmouth.  I am.  The reason I don’t like to speak ill of those on the bench is simply that badmouthing judges can really backlash on an opinionated, loudmouth lawyer like myself.  But I will make an exception, because I think reasonable minds can all agree that Santa Clara County Superior Court Judge Aaron Persky really made a horrible, horrible call this past week when he sentenced Rapist Brock Turner to only 6 months of jail time and probation.

Brock Turner raped an unconscious woman behind a dumpster.  That is not my opinion.  It’s a fact.  He was convicted of three counts of sexual assault.  Two guys stopped Turner because it was obvious that the woman was unconscious.  The crimes he committed are about as heinous as crimes come.  And it’s unforgiveable. 

Let’s talk briefly about some crimes that poor people commit, and the years in prison they serve for those crimes.

In Kentucky, there are several victimless crimes that can get you sent to prison.  The first that comes to mind is using drugs.  Making your own drugs, growing marijuana plants, and even the simple possession of drugs can all be felony crimes.  Notwithstanding some exceptions for presumptive probation, “getting high” in Kentucky can get you WAY more time behind bars than Rapist Brock Turner will ever see.  In fact, making your own meth, which is obviously a bad idea – but still a victimless crime, can get you 20 years in prison.  

Theft - although it involves a perpetrator and a victim - also comes to mind.  If someone steals an item worth over $500, that’s a felony.  You can get 5 years in prison for Theft by Unlawful Taking.  And anyone with half a brain will tell you that, even though theft is a crime that inherently involves a perpetrator and a victim, raping another person is a far more egregious action than taking someone’s iPad.

If Rapist Brock Turner was a poor black criminal defendant, his swimming hobby would never have been reported.

If Rapist Brock Turner was a poor black criminal defendant, you’d see his original mugshot in stories instead of the cleaned up frat version.

If Rapist Brock Turner was a poor black criminal defendant, he would have gotten years upon years in prison for rape.

One of the factors for deciding whether an offender needs prison time is whether they pose a risk of danger to society.  In fact, it’s one of the factors Judge Persky “considered” stating bluntly, “I think he will not be a danger to others.”  Well, if the best predictor of future behavior is past behavior, Judge Persky is flat wrong.  Sex offender recidivism statistics are staggering; 43% are likely to be re-arrested and 5.3% are re-arrested for another sex crime within 3 years of release from prison (according to the DOJ).

But you don’t have to know a single statistic to know “Rapists are dangerous to others.”

And as a side note – sure, it’s important to remind young people that getting blackout drunk is a bad idea.  In fact, it’s ok to say that bad things happen when you get blackout drunk.  But if you even insinuate that girls get raped because of alcohol, you’re contributing to the problem.  Rape happens because of Rapists.

Jails and prisons are overcrowded.* 

We spend more money to house someone in prison than to educate them.**  

At a time when Judges need to make smart decisions about which convicts do serious prison time, offenders with clear victims (who clearly suffer) need to be the ones serving that serious prison time.  That’s why Judge Persky did wrong.

* http://www.wdrb.com/story/31809242/release-louisville-metro-corrections-filled-to-capacity-some-inmates-to-be-moved-to-unused-jail-built-in-1950s; http://www.newsweek.com/unconstitutional-horrors-prison-overcrowding-315640; https://www.youtube.com/watch?v=_Pz3syET3DY

** http://money.cnn.com/infographic/economy/education-vs-prison-costs/

Free in Kentucky: Murder, Assault, Insanity, Incompetency, Extreme E...

Free in Kentucky: Murder, Assault, Insanity, Incompetency, Extreme E...: The mental state of a criminal defendant can seriously affect the outcome of a criminal case.  In fact, it can be determinative.  Mental st...

Murder, Assault, Insanity, Incompetency, Extreme Emotional Disturbance

The mental state of a criminal defendant can seriously affect the outcome of a criminal case.  In fact, it can be determinative.  Mental state is so important that the exact same action – killing another person, for example – can be one of several different types of homicide charge, or no crime at all, depending on the mental state of the person who killed another. 

Often, mental state will be a necessary part of the prosecution’s case.  The thoughts of the accused will be used as a weapon against the criminal defendant in front of a jury.  Intent, wantonness, knowledge and recklessness will often be requirements for the prosecution to prove in order to obtain a conviction.  But occasionally the mental state of my client can be used as a shield.  That’s what our conversation is about today. 

The classic and often heavily scrutinized example of using mental state as a shield is the “Insanity” defense.  Essentially, the defense is that the criminally accused cannot be held responsible for their actions due to psychiatric illness.  The first documentation of insanity as an exemption for criminal activity dates back to the Code of Hammurabi in 1750 BC.  At least, I assume that’s correct.  That may or may not be some stuff I just read on Wikipedia.*

In Kentucky, our standard for the Insanity defense is codified in KRS 504.020, and reads, “A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or intellectual disability, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.”  Boiled down, it means that a person is “insane” for the purpose of eluding criminal responsibility if they are mentally ill or disabled, and they either 1) cannot understand that what they are doing is against the law, or 2) they are unable to control their actions.  If an individual can prove they were insane at the time of the alleged criminal activity, they cannot be found guilty of a crime.**

“Incompetency” is different from “Insanity.”  If a person is not insane for the purpose of criminal prosecution, it’s possible that they still may not be competent to stand trial (and vice versa).  If you murder someone on Friday, and on Saturday you have an automobile accident that leaves you severely mentally handicapped, it’s very possible that you may have been completely sane for the purpose of criminal liability but incompetent to stand trial for those criminal actions.  KRS 504.090 governs the incompetent, and states, “No defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues.”

When medical professionals evaluate a person’s “Competency to stand trial” they take into account a lot of different factors, including understanding of the charges against them, appreciation of the penalties, appraisal of defenses, appraisal of the function of courtroom personnel, understanding of court procedure, ability to participate and assist in their defense, capacity to testify, and many more.  If a Judge determines (after hearing the medical evidence) that a defendant is incompetent to stand trial, they must also determine whether the defendant is likely to regain competency (with treatment, medication, etc.).  Assuming the defendant is incompetent and not likely to regain competency, the charges against them may be dismissed.***

If someone is sane, and also competent, that doesn’t mean that an agitated mental state at the time of the criminal conduct won’t be beneficial to their defense.  If the crime alleged is murder or assault, the Defendant could have an “extreme emotional disturbance” (EED) defense.  The classic example of this sort of shenanigans is: “Man comes home from work to find wife in bed with Friend.  Man flies into a rage and kills wife and friend.”  This is the classic example of extreme emotional disturbance. 

For a Murder charge, the prosecution needs to prove the LACK of extreme emotional disturbance.  In the Murder statute, KRS 507.020, it states that a person is guilty of Murder when “(a) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime[.]”  So, if the prosecution cannot prove that someone intentionally committed murder WITHOUT the presence of EED, the defendant’s charge may be reduced to Manslaughter in the First Degree.

Concerning a charge of Assualt, the burden would be on the Defendant to establish EED as a defense.  KRS 508.040 governs Assault under extreme emotional disturbance, and states, In any prosecution under KRS 508.010, 508.020 or 508.030 in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020.”

Like the result in a homicide case, Assault committed under EED would reduce the severity of the crime committed.  Specifically, an assault committed under the influence of extreme emotional disturbance is a Class D felony when it would constitute an assault in the first degree or an assault in the second degree if not committed under the influence of EED; or a Class B misdemeanor when it would constitute an assault in the fourth degree if not committed under the influence of EED.

               

In short, the mental state of someone who injures or kills another person in Kentucky can be absolutely crucial to their case.  In some cases, it can make or break the prosecution’s case against them.  Insanity, Incompetency, and Extreme Emotional Disturbance may be useful in defending a Homicide or Assault charge in Kentucky.

Homicide and Assault charges are extremely serious.  In fact, they can be as serious as charges come in Kentucky.  If you’re charged with Murder, Reckless Homicide, Manslaughter or Assault in Kentucky, call 502-618-4949 for a free consultation with Attorney Greg Simms.

*It is.

**People who are not guilty by reason of insanity can still be sent to a mental institution by a judge.

***Again, there’s the possibility of involuntary commitment to a mental hospital.

Law is Changing - Get Your DUI Expunged NOW!

I’ve never understood people who want to make expungements more difficult.  By nature, we’re talking about people who made a mistake, and years have passed – during which time they have made better life decisions and kept their noses clean.  Why try to make things more difficult for them??? 

Second chances.  WWJD and whatnot.

On January 5^th, 2016, House bill 13 was introduced and passed to the House Judiciary Committee.  The bill will make expungements more difficult for Kentuckians with blemished records.  So it’s time to act. 

If you’ve been convicted of a D.U.I. five years ago (or more), this news is extremely important for you.  HB 13, as it reads, amends KRS 189A.010(5)  [Your Kentucky law concerning D.U.I conviction penalties] to allow the court a longer “look-back” period to examine one’s D.U.I conviction history, to determine the severity of one’s punishment. Currently, KRS 189A.010(5) provides that any D.U.I conviction within a five-year period from a previous D.U.I conviction, is subject to increased sanctions. House Bill 13 doubles that window of time to ten years. This means if you’ve been convicted of D.U.I, the state will hold that charge over your head for ten years and increase the sanctions for a subsequent D.U.I conviction.

THIS MEANS that if you were convicted of a D.U.I.  charge five or more years ago, you need to expunge that charge from your record, IMMEDIATELY.

If you were convicted of a D.U.I.  or any other misdemeanor offense, five or more years ago, and wish to have that charge cleared from your record, contact Attorney Greg Simms,

at (502) 618-4949, or by cell phone text to 270-402-4581.

See the text of the bill at https://legiscan.com/KY/bill/HB13/2016

Free in Kentucky: Published KY Supreme Court Roadblock Decision!

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...

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 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:

http://opinions.kycourts.net/sc/2013-SC-000618-DG.pdf

Free in Kentucky: I Get Reviewed by Kids, Part Deux

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...

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 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.

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.

http://www.whas11.com/story/news/crime/2015/06/13/metrosafe-police-investigate-shooting-near-3rd-and-oak-street/71178474/

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/

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 8^th 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.

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.

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 2^nd, 3^rd, or 4^th.  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

Free in Kentucky: Gary Carver and the $96,000.00 Police Brutality Se...

Free in Kentucky: Gary Carver and the $96,000.00 Police Brutality Se...: 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 ...

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:

  http://www.wdrb.com/story/27386865/city-pays-96000-to-settle-lawsuit-claiming-wrongful-arrest-assault-by-lmpd

           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?