Judicial Application of the First Rule of Law Enforcement

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At 2:45, Malone explains the First Rule of Law Enforcement which has been used ever since to justify increasingly arbitrary and abusive actions, all in the name of officer safety.

Most recently, two blawgers whom I really admire discussed the issue in separate blawg posts.  (For the uninitiated, a blawg is a “slang term used to describe an online blog that is written by lawyers, or one that is focused on providing legal-oriented content.” Blawg, Webopedia, http://www.webopedia.com/TERM/B/blawg.html, (Vangie Beal, ed., last viewed Oct. 10, 2014)).  For now, I don’t consider this a blawg as I am not a lawyer, but both U.S. District Judge Richard Kopf and N.Y. criminal defense attorney Scott Greenfield write excellent blawgs, Judge Kopf at Hercules and the Umpire, and Mr. Greenfield at Simple Justice.

Mr. Greenfield has posted in the past about the First Rule, and he spoke about it again, at “Due Deference and the Vignette.”

Knowing that judges may have George Amos vignettes of their own, some police officers invoke his memory when there was no actual fear, to get away with conduct for improper purposes.  They play the judge. They lie. They justify it because they are the good guys, and the end justifies the means. They justify it because the mutt of a citizen deserves it anyway. They play the fear card because they can.

He has it exactly right, only it is not some officers, it is most officers.  For example, in the below video (at 2:10), the officer tells the person stopped that he needs to “put the phone down, it’s an officer safety issue.”

This is not an officer safety issue, it is a control issue with the officer.  She told the individual to stop doing something and he declined to do so.  She knows that it is not a weapon, she already identified it as a phone.  At 7:05, another officer arrives and makes it very clear that this is not an officer safety issue, it is a compliance and control issue, by informing the individual that when an officer tells you to do something and the individual doesn’t do it, it is obstruction.

In another example, from Baldwin v. State, 278 S.W.3d 367 (Tex. Crim. App. 2009), a deputy makes a stop of a person who he has reasonable suspicion may be committing or about to commit a burglary.  There is no doubt in my mind that from the facts the deputy does have reasonable suspicion, but Baldwin does not want to identify himself to the deputy.  So the deputy handcuffs Baldwin and searches him for his ID, claiming that he was in “fear of his life.”  Both the state district court and the court of appeals buy this story, and it is appealed to the Texas Court of Criminal Appeals.†

The State argues that Deputy Smith handcuffed appellant based on “officer safety.” “Officer safety” is a legitimate purpose. However, the need for handcuffing and the threat to officer safety must not be imagined or objectively unreasonable under the particular circumstances. Nor may it be done simply because a citizen declines an officer’s request to see his identification.
Baldwin, 278 S.W.3d at 374 (J. Cochran, concurring).

There is way too much deference given to the deputy in this case by the trial court judge and the intermediate appellate court judges.  All of them accepted the deputy’s bullshit until the Court of Criminal Appeals.

Judge Kopf wrote an excellent post on what happens to one’s perspective when an officer is killed.  I understand completely what that type of event does to one’s perspective.  At the first police department I worked at, in a one year period, seven officers lost their lives in the line of duty, five to gunfire and two who were killed pursuing a stolen vehicle.  It made me very conscious of officer safety and of what I needed to do to survive.  I believe in the First Rule of Law Enforcement, but I also believe that our citizens have that same right to go home at the end of their day.  I believe that an officer who uses “officer safety” as a way to skirt constitutional requirements as to arrest, search, and seizure has overstepped and needs to be held to account.

At the very least, we suppress the illegally seized evidence and if necessary, let the defendant walk.  We don’t give the officer the benefit of the doubt merely due to his badge.

†In Texas, the Court of Criminal Appeals is the highest appellate court for criminal cases, the state Supreme Court does not have criminal jurisdiction.

Garrity and a Police Officer’s Constitutional Rights

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This is very basic, black letter law, but I feel compelled to address it in the face of completely wrong information at another website.

Charlie Grabski has stated on the PINAC blog that “A citizen may be a police officer. But a police officer is not a citizen.  The citizen has those rights. The officer does not.”  Charles J. Grabski, PINAC comment (emphasis added).  Fortunately, Grabski is completely wrong.

The Supreme Court has been very clear on this, and it is nowhere close to what Grabski says.

“We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.”  Garrity v. State of N.J., 385 U.S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562 (1967) (emphasis added).
In other words, although Grabski may wish it were so, police officers have the same constitutional rights as everyone else.
Other cases stating the same thing include, but are not limited to:
  • Hughes v. Whitmer, 714 F.2d 1407, 1435 (8th Cir. 1983) (“As the Supreme Court has so forcefully stated: ‘policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights. . . .’”) (internal citation omitted).
  • Greenwald v. Frank, 337 N.Y.S.2d 225, 231 (App. Div. 1972) (“That statement, like the Holmes dictum . . . that ‘petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman’, has been relegated to the dust heap of history. In the court said, ‘We conclude that policemen, like teachers and lawyers, are not relegated to a watered-down version of constitutional rights.’”)(internal citations omitted).
  • Driebel v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) (“We begin our analysis by stating the well-settled rule that men and women do not surrender their freedoms when joining the police force.”) (internal citations omitted)

Look, I understand that Grabski has a bias against police, he’s had some bad encounters with them.  However, putting out information that police officers are second class citizens is just wrong.

Michael Brown Autopsy

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The NY Times reported that a private autopsy on Michael Brown shows that he was shot six times from the front, not the back as would be the case if he were running away.Brown autopsy  This tends to support the police version of what happened at the scene.  There was information that Brown turned and was charging Officer Wilson.  If Brown had just tried to take Wilson’s gun and it had discharged (intentionally or not) in the squadcar, then ran, and then turned to re-engage the officer, then any police officer would be expected to fire on the person.

It is like this–the person just tried to take the officer’s gun, and about 90% of the time if they get control of the gun they kill the officer.  Now, unarmed, they are attacking a second time?  They are trying to kill you, so you use deadly force to stop them.

Here it appears that the arm was facing the officer, not in an upright “surrender” position.  It would be consistent with the actions of a strong arm robber contacted by the police, at least in my experience.  I never arrested a strong arm robber who did not resist, it was always a fight to arrest them.

The forensic pathologist stated that it appeared that the two head shots were the last two fired, which would also be consistent with police training.  If Wilson fired four rounds, attempting to hit Brown in the chest without apparent effect, then you fire at the head.  It’s called a “failure drill” as in the first shots failed to stop the suspect.

There will be a total of three autopsies performed.  The local one performed by St. Louis County, this private one, and one in the future to be performed by a federal medical examiner.

Although it is beginning to look like the shooting was justified, I am still opposed to the overly militant response of the police.

The Military Occupation of Ferguson, Missouri

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Police Shooting Missouri SWAT-14 SWAT-13 SWAT-12 APTOPIX Police Shooting Missouri SWAT-10 Police officers keep watch while demonstrators protest the death of black teenager Michael Brown in Ferguson Riot police clear a street with smoke bombs while clashing with demonstrators in Ferguson, Missouri

Police Force? Or Occupying Army?

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SWAT-1

SWAT-2

SWAT-3

SWAT-7 SWAT-6 SWAT-5 SWAT-4

Abilene Police do not Understand Lawful Detention or Failure to Identify

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This is a contact between officers of the Abilene Police Department and an individual who identifies himself as Bobby Ivester (at about 0:25).  Ivester is openly carrying a rifle, allows the officers to inspect the weapon, but declines to produce identification when the officer requests it at about 1:30 in the video.  The second officer explains to Ivester that he is being detained.

The reason for the detention?  “Because we got a call on you” (at 2:40).  Unfortunately, both Ivester and the officers do not understand Texas law.

Ivester is arguing that he is not being lawfully detained.  I disagree.  I believe that he is being lawfully detained (initially, at least).  The 911 call about a man with a gun, combined with the officers finding Ivester with an openly carried rifle, provides a reasonable suspicion that Ivester may be committing the offense of disorderly conduct.  See Tex. Pen. Code § 42.01(a)(8), displays a firearm in a public place in a manner calculated to alarm.  Please note that I did not state that Ivester was committing that violation, clearly he was not, but that doesn’t negate the fact that the officers had reasonable suspicion to make the contact and detain Ivester.

Both Ivester and the officers are under the impression that if the police detain someone, that individual has to identify themselves to the officer.  That is simply incorrect.  Tex. Pen. Code § 38.02 is very clear, an offense is only committed if the detained person lies about who he is (or his date of birth or residence).  Refusing to provide identifying information is not an offense.

At about 5:20 in the video, the second officer grabs the camera and handcuffs Ivester.  At 6:55 in the video, an officer says that they don’t know what Ivester’s intent with the gun is.  That’s true.  It also doesn’t matter.  The officers are not allowed to presume that Ivester is a felon or otherwise unable to carry a rifle.  United States v. Black, 707 F.3d 531, 540 (4th Cir. 2013) (Being a felon in possession of a firearm is not the default status).  The officers try this argument anyway, assuming that it is their “duty” to determine if Ivester has the right to carry the rifle.   Uh, guys–his right to carry is called the Second Amendment.

At this point, Ivester is being unlawfully detained.  The officers have already determined that Ivester was not committing the offense of disorderly conduct and are now just fishing for his identification to try and charge him with something else.  They have improperly extended the contact, see Kothe v. State, 152 S.W.3d 54, 64 (Tex. Crim. App. 2004) (“once the original purpose for the stop is exhausted, police may not unnecessarily detain [individuals] solely in hopes of finding evidence of some other crime”).

If you disagreed with what the officer’s did, you can contact them at:

  • Chief Stan Standridge, stan.standridge@abilenetx.com, 325-676-6600
  • Assistant Chief Mike Perry, mike.perry@abilenetx.com, 325-676-6600 (over Uniformed Services)
  • Officer George Spindler, apdpio@abilenetx.com, 325-437-4529 (Public Information Officer)
  • Facebook; webpage

Related posts:

H/T:  Jim Morriss

The Last of Three Abusive Bridgeport, CT Officers Indicted

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In 2011 following a chase, Bridgeport, Connecticut Police Officers tased and arrested Orlando Lopez-Soto.  The two officers initially involved, Elson Morales and Joseph Lawlor, repeatedly kicked Lopez after he was laying flat on the ground, compliant.  They pleaded guilty to federal charges of deprivation of rights under the color of law, a violation of 18 U.S.C. 242.  Each face up to a year in prison.

Clive Higgins did not take the deal and was indicted for the violation with bodily injury.  He faces up to ten years in prison and pleaded not guilty.  He has been placed on unpaid suspension by his department, which recently settled with Lopez for $198,000.  Lopez is currently in prison on a 5-year sentence on drug and gun charges.

What is interesting in this case is that Higgins is being represented by a federal public defender.  Why isn’t he being represented by a union attorney?  I can think of two likely reasons, first, that he was not a member, in which case he is an idiot.  Second, that the union cut him loose, not wanting to defend him, in which case they are spineless.  There are, of course, other possibilities, so there may be a good explanation, but that is just my read on the situation.

In any event, all three are pretty much toast, and rightfully so.  While I do not have a problem with force when it is justified, unjustified force must be identified and prosecuted.

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