Fourth Circuit shooting case involving a homeowner shot by approaching police officers – George Cooper, Sr., v. James Sheehan, et al.

1 Comment

ExCop-LawStudent:

This blawg post by a West Virginia attorney, John Bryan, hits the nail on the head (as does the Fourth Circuit in their opinion).

Originally posted on Use of Force Source:

In November of 2013, the Fourth Circuit examined a North Carolina case where approaching police officers shot and wounded a homeowner who was investigating the source of a disturbance outside of his home.  The approaching officers HAD NOT announced their presence and identified themselves as police officers prior to shooting.  The case was George Cooper, Sr. v. Jamess Sheehan, et al.

Read the Opinion here.

Listen the oral argument audio here.

On the night in question, police officers responded to a call involving two men allegedly screaming at eachother outside a residence.  The dispatch call did not indicate whether either of the two men were armed, or unarmed.  Two police cars arrived – one a standard marked car, and the other an unmarked vehicle.  Neither of the officers activated his blue lights or siren.  They apparently were wearing uniforms.  They parked at the end of George Cooper’s property…

View original 1,144 more words

Trekkies to Get Their Day in Court

13 Comments

In 2011 Terrance Huff and his friend Jon Seaton were driving back to their home in Ohio after attending a Star Trek convention in Saint Louis.  When going through Collinsville, Illinois they were stopped by officer Michael Reichert, allegedly for crossing the centerline.  A few months later Huff posted the officer’s dashcam video, which went viral.

Many of the comments suggested that Huff and Seaton should sue Reichert, which they did.  Reichert moved for dismissal which the U.S. District Court for the Southern District of Illinois denied and Reichert filed an interlocutory appeal with the U.S. Circuit Court of Appeals for the Seventh Circuit.  See Huff v. Reichert, No. 13-1734, 2014 U.S. App. LEXIS 4446, 2014 WL 906103 (7th Cir. Mar 10, 2014).

Before I link to the Seventh’s Circuit opinion, let’s look at the traffic stop.

First, the violation is probably BS.  First, there is no video of the violation.  While it is not required, officer’s who are concerned with documenting evidence will turn on the camera and get the violation (most have a buffer that saves the previous 30-60 seconds).  Second, this seems to be a recurring violation used by Reichert.

Second, when the reason for the traffic stop is over, the driver must be free to leave.  Here Reichert asked for consent and Huff denied it, saying that he wanted to leave.  Reichert told him that he could leave, but that the car could not.  Really?  On what grounds?  Because thus far, Reichert hasn’t shown anything even approaching reasonable suspicion, much less probable cause.

Third, during the open air drug sniff, Reichert repeatedly told his dog to “Show me where it’s at! Find it!”Id., at *4, 2014 WL 906103, *2.  Reichert even admitted that this was improper procedure and violated his training.  Well, duh!  He’s telling the dog to alert, which it conveniently does at the front of the car, out of the camera’s vision.  Really?  Gee, I would have thought that the scent of drugs would have been strongest at the doors and windows, not at the radiator.

Fourth, why is an arrest of over 10 years age even relevant?  Besides that, why even run Huff for his criminal history?  It’s just not done on a routine basis.  Sure, officers will check the DL and for warrants, that’s easy.  It is more difficult to run a CCH.  First, it is done separately from a DL/warrants check.  Second, you have to have a valid reason to run it, other than it just being a traffic stop.  Third, a CCH can take forever to return, and if you do get a hit, you have to run it again to get the details.  It just isn’t done on normal traffic stops, but it does explain his comment about the computer running slow.

Fifth, why was Reichert still on the street doing interdiction?  A federal judge had already found that his testimony about having probable cause to search a vehicle was not credible.  United States v. Zambrana, 402 F. Supp. 2d 953 (S.D. Ill. 2005).  OK, I’ll grant you that Collinsville PD fired Reichert in 2006 and the union got his job back.  But why doing K9 drug interdiction?  Isn’t the State’s Attorney Office required to turn over this type of information on officer credibility to the defense?  See Brady v. Maryland, 373 U.S. 83 (1963).  This seems relevant, especially when you consider that a large part of the reason that Judge Michael Reagan noted that “Reichert thereby engaged in misrepresentation, deceit, and falsification” when he was earlier convicted of a misdemeanor for selling fake Oakley sunglasses.  Id., at 958-59.  Here it is clear that no one trusts Reichert, from the Federal Court to the state Circuit Court to the State’s Attorney to the U.S. Attorney, Radley Balko, Illinois Traffic Stop of Star Trek Fans Raises Concerns about Drug Searches, Police Dogs, Bad Cops, Huffington Post (Mar. 31, 2012, updated Aug. 7, 2013), http://www.huffingtonpost.com/2012/03/31/drug-search-trekies-stopped-searched-illinois_n_1364087.html.

This is a disaster waiting to happen, at least to the taxpayers of Collinsville.  In the meanwhile, the police chief is standing behind Reichert.  This may be due to Reichert being the Officer of the Month in 2011.  The reason?  His good work in drug interdiction.

Of course, we’ll see what the city does next.

The court opinion is here.

See also:

Lakewood, NJ Police Arrest One of Their Own

2 Comments

jeremy_felder_lpd_tlsThe Lakewood, NJ Police and the Ocean County Prosecutor recently announced the arrest of Lakewood Officer Jeremy Felder for Official Misconduct.  Official Misconduct is a second degree felony, with a punishment of 5-10 years in prison.  N.J. Stat. § 2C:30-2.

After Felder was indicted and arrested, he was suspended without pay pending the outcome of the trial.  The charges against the original subject were dropped due to the misconduct.

Felder is accused of committing an illegal search in the Lakewood case, but had earlier been involved in the illegal arrest of Anthony Bell while Felder was an officer in Jackson Township.  The township settled the inevitable lawsuit for $95,000 while admitting no fault.  Felder was hired by Lakewood shortly thereafter, at a significant pay cut.

When Cop-Blockers Don’t Understand the Law

21 Comments

Two Cop-Blockers in Odessa, Texas were detained recently and did not like it.  Some of what they don’t like is correct, but much of it is mistaken.  I’ll address their comments, which are in italics.  Here is their video:

We were walking around Odessa Police Department around 7PM, both for exercise, and to get some shots of the building, and parking lot, all of which was captured while standing on a public sidewalk. As the video starts out, you can see use walking around the building complex, joking around and talking, and then we are illegally detained for over 40 minutes by quite a lot of officers. My biggest issue, is that they know very well who we are, and their excuses of us being “suspicious” were completely unfounded and outright lies. Anyway, here are several points we’d like to make about this detainment…

1: Filming from a public, or publicly accessible area is legal, including anything that can be seen in plain view from such locations unless it is sexual in nature, such as filming someone undressing in front of a window, or trying to take a picture down a woman’s shirt. OPD claimed that their facility was exempt from this legal activity. (It’s not)

This was a correct statement.  You can generally film anything you can see in public, with some narrowly limited exceptions (including the ones noted).

2: They changed their story several times as to why we were being detained. First it was suspicious behavior, then it was for filming their “vehicles”, then it was “possible intent to commit burglary”. One officer even went so far as to mention the naval base shooting, as if that was some other reason to think we might be up to no good.

They really didn’t change their stories.  At 3:15, when they first get stopped and are told they are being detained, the officer states that the detention is to make sure that they “are not breaking into people’s vehicles.”  That is a reasonably articulable suspicion of criminal activity based on the actions of the individuals, and it is consistent with the later comments on burglary since breaking into vehicles is Burglary of Vehicles, Tex. Pen. Code Ann. § 30.04 (Vernon).  The officer further explained that it was nighttime, the individuals were walking through a parking lot, taking photographs of vehicles, etc.  Guys, that is reasonable articulable suspicion.

3: The supervisor on scene outright lied and said it is illegal to not carry ID on you at all times. This is a complete lie. You are not required to carry ID on you unless you are engaged in an activity that requires such identification, such as driving. You’re not even required by Texas law to provide your name and birthdate unless you are under arrest or legally detained.

The supervisor is ignorant.  There is no requirement under Texas law to carry ID.  I would suggest that the sergeant get hold of a copy of the Texas Penal Code and read it in order to find out what the law allows.  And WTF does Texas Open Records law have to do with photography?  She is really, really ignorant of the law and has no business supervising police officers when she doesn’t understand the law.

4: Upon hearing that the first amendment right of freedom of press was the “legality” I had for filming their facility, she insisted that the Texas state penal code protected police vehicles from being filmed or photographed. (It doesn’t)

More BS by the officers.

5: We were held for longer than 20 minutes, violating the Terry Stop law, from Terry vs Ohio.

This is incorrect info – there is not a “20 minute” time limit on a stop.

6: One officer refused to give us his name and badge number. After we were released I asked the remaining officers for his information and they refused to give it to me as well.

No state law requires that, but most PDs have a policy on identifying themselves.

7: We were apparently SO suspicious that between 15 – 20 cops were on the scene, and yet not once did they feel the need to pat us down to make sure we weren’t armed. They didn’t even ask for a regular search, or even to see the footage we had acquired. This was the biggest indicator that the entire detention was purely for harassment and intimidation.

Actually, that is not correct.  If they did not have reasonable suspicion that you were armed, a pat down for weapons would be unreasonable.  The officers did OK on that part.

8: Officer Aguilar did not let me read over the information he wrote down about me before demanding that I fingerprint myself.

There is no requirement for him to do so.

9: All except one officer on scene acted in an overly aggressive manner, trying their best to intimidate us. (Which didn’t work)

That’s a subjective view, but I can understand both sides here.

10: They claimed they had us on camera entering their parking lot, which we NEVER did. Another lie.

OK, so?

11: All in all, we could have remained silent, refused identification (since they had no reasonable articulable suspicion and therefore no legal right to detain us), gotten arrested on a bogus charge, and later fought it in court, but I was more concerned with getting us home that night. There will always be another time.

They actually had grounds to detain, or at least stated valid grounds, but you are correct, you did not have to ID, but not for the reasons you stated.  The Texas statute does not require a detained subject to ID themselves.  Check my earlier posts on this.

Texas Failure to Identify Law, What it Says vs. What Police Think It Says

23 Comments

ExCop-LawStudent:

I’m reposting this due to the recent incident in Austin where everyone is in an uproar over the arrest of a female jogger.

Unfortunately in this case, the arrest may be proper. If the officer was writing tickets for “jaywalking,” then she was legally “arrested” to be released on a citation (similar to an ROR). As she was technically under arrest, she would have to provide ID information, and if she refused could be charged with Failure to ID.

Originally posted on ExCop-LawStudent:

The Texas Failure to Identify law is fairly simple.  Why don’t police get it?  It states:
  • (a)  A person commits an offense if he intentionally refuses to give his name, residence address, or date of birth to a peace officer who has lawfully arrested the person and requested the information.
  • (b)  A person commits an offense if he intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has:
    • (1)  lawfully arrested the person;
    • (2)  lawfully detained the person; or
    • (3)  requested the information from a person that the peace officer has good cause to believe is a witness to a criminal offense.
  • (c)  Except as provided by Subsections (d) and (e), an offense under this section is:
    • (1)  a Class C misdemeanor if the offense is committed under Subsection (a); or
    • (2)  a Class B misdemeanor if the offense is committed…

View original 733 more words

The First Rule of Policing – and the Harm it Does, Part IV

5 Comments

Part of a continuing series, see Part I, Part II, and Part III.

OK, so far we got that police officers are worried about their safety, that the War on Drugs have not worked, and that SWAT was designed for high risk operations.

The problem is that all of these things have come together and had an unintended consequence.  As the War on Drugs continued and some of the criminals began to use more violent methods, it was natural that police would begin to use SWAT on those raids.  In some cases, it was appropriate to do so.  Just as was the case during Prohibition, some criminals were violent and fought the police.  For example, in West Baton Rouge, Louisiana, SWAT raided a series of homes used by a criminal gang.  In addition to large amounts of drugs, a bullet-proof vest and 13 firearms were seized.  Or in Sonoma County, California, where SWAT raided the home of a known gang member, who was out on bail from a previous drug arrest.  SWAT seized drugs and guns, including an “assault weapon.”

The problem is mission creep.  Once the police got used to using SWAT, it became more common.  So now police departments regularly use SWAT for any search.  Examples abound of the misuse of SWAT:

  • Arlington, Texas SWAT raids an organic farm, holds residents for 10 hours.  The crime?  Code enforcement violations.  Oh yeah, these people are hippies, so there are probably drugs involved.
  • Saint Louis.  SWAT served an “administrative” felony warrant, because SWAT serves all felony warrants.  Really?  What happened to arranging for the perp to surrender?
  • Orange County, Florida police and a state regulatory agency perform a number of warrantless “inspections.”  In the raids, 37 people were arrested, the vast majority for misdemeanor “barbering without a license.”  See Barry v. Demming, No: 6:11-cv-1740-Orl-36KRS, 2013 WL 4500467 (M.D. Fla. Aug. 22, 2013) (summary judgment denied, there is a question of fact whether the search was reasonable and if excessive force was used).
  • New Haven, Conn. police used SWAT to check if bar patrons were of legally drinking age.  Really?  Yale students are going to attack the police?  Look, I’ve handled underage drinking.  These kids do not assault police for the most part.  They either run or try to use fake IDs.  Whoever thought that using SWAT was appropriate should have been demoted or fired.
  • Atlanta, Georgia.  SWAT is used to raid a recording studio for copyright violations.

And those are just some of the ones where no one was seriously injured.

When questioned, for the most part the police try and justify the use of the SWAT teams.  Remember, in the police mindset, the First Rule of Policing takes precedence—and they don’t think of the right of the citizen to go home safely.

Update – Springdale Police Officer Sentenced to Prision

Comments Off

Earlier I had written about Springdale police officer Mark Thom, his abuse of local citizens, and the city council that enabled him.

Last week Thom was sentenced to prison for a year and a day, and then to 3 years probation following release.  U.S. District Judge Mark Hornak told Thom that he would never serve as a police officer again.

The former police chief Joseph Naviglia said that Thom is “a habitual liar and a very conniving and manipulative person.”  Naviglia also said that the city council protected and covered up for Thom.  You’ll remember that I pointed this out in my past article.

Springdale has had to pay out $225,000 in the incident leading to the criminal charges, and $98,500 in a separate case.  But I guess Dave Finley doesn’t care about that either.

Older Entries

Hercules and the umpire.

THE ROLE OF THE FEDERAL TRIAL JUDGE

Windypundit

Classical liberalism, the war on drugs, economics, free speech, science and technology, entertainment, original photography, and sometimes cats.

JONATHAN TURLEY

Res ipsa loquitur ("The thing itself speaks")

UNWASHED ADVOCATE

Dispatches from Bat Country, where proper medication is optional.

Chasing Truth. Catching Hell.

A Public Defender's Blog, @normdeguerreesq

The Legal Satyricon

Occasionally irreverent thoughts on law, liberty, tech, and politics

Legal Writing Prof Blog

General ramblings of a former police officer turned law student

LawProse Blog

General ramblings of a former police officer turned law student

How Appealing

General ramblings of a former police officer turned law student

Circuit Splits

General ramblings of a former police officer turned law student

SCOTUSblog

General ramblings of a former police officer turned law student

Real Lawyers Have Blogs

General ramblings of a former police officer turned law student

The Droid Lawyer™

Tips, Tricks, and Techniques for Lawyers using Android mobile devices

Say What?! Classic Courtroom Humor from Judge Jerry Buchmeyer

General ramblings of a former police officer turned law student

Judge Bonnie Sudderth

Law Blog on the Texas Rules of Evidence

New York Personal Injury Law Blog

General ramblings of a former police officer turned law student

Overlawyered

Chronicling the high cost of our legal system

The Federal Criminal Appeals Blog

General ramblings of a former police officer turned law student

Defending People

General ramblings of a former police officer turned law student

Preaching to the choir

General ramblings of a former police officer turned law student

Crime and Consequences Blog

General ramblings of a former police officer turned law student

Simple Justice

General ramblings of a former police officer turned law student

Koehler Law » KOEHLER LAW BLOG

General ramblings of a former police officer turned law student

General ramblings of a former police officer turned law student

The Volokh Conspiracy

General ramblings of a former police officer turned law student

Trial Theory

A South Carolina Criminal Defense Blog

Appealingly Brief!

Ruminations (brief and to the point) on the law and lawyering, by Daniel Klau.

Popehat

A Group Complaint about Law, Liberty, and Leisure

ExCop-LawStudent

General ramblings of a former police officer turned law student

Follow

Get every new post delivered to your Inbox.

Join 74 other followers