Trekkies Win, Collinsville Settles!

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Huff v. Reichert has been settled by Collinsville for $100,000.

After listening to the audio from the arguments at the Seventh Circuit, I understand why they settled.

The panel really questioned the officer’s attorney, doubting almost everything that he said, after pointing out that he had cited a case which had been subsequently overturned.  The exact quote was that the case cited “had been overruled on precisely this ground.” Ouch.  That is not good.  That hurts.  That hurts like watching Mazeroski’s Game 7 walk off home run, if you’re a Yankee’s fan.

And everytime that the attorney stated his position, a judge was shooting it down.  Why did Reichert pat down Huff and his passenger?  What reasonable suspicion did he have?  How does this even begin to be a valid search?  Etc.

I also noticed that Huff’s attorney was only asked one question, not related to the facts of the case.

I think that Huff could have held out for more.

 

 

 

Wisconsin Makes a Good Start

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During the last week, Wisconsin lawmakers passed and Governor Walker signed a new bill affecting how deaths caused by police officers would be investigated.

Officer Stephen Heimness

Officer Stephen Heimness

In November of 2012 Paul Heenan was shot and killed by Madison, Wisconsin Police officer Stephen Heimness. Heenan had been drinking and had entered the wrong house on his street.  He was shot as he was struggling with the home owner and reportedly with officer Heimness.  Heimness said that Heenan attempted to take his gun and that he was in fear of his life when he shot Hennan.

An internal investigation conducted by the Madison PD and an investigation by the Dane County DA’s office cleared Heimness.  A federal DOJ investigation was reportedly started, but where it went is not known.  The Madison Chief of Police later found that Heimness had committed 118 violations of 13 department policies and Heimness resigned in lieu of a termination hearing.  The Chief, who later retired, said that the shooting was still a good shooting and was within policy.

Uh huh.  The lawsuit for wrongful death wouldn’t have anything to do with that statement, would it?

MichaelBell

Billboards calling for change

This wasn’t the only case where the internal police investigation was questioned.  In 2011 Derek Williams choked to death in the back of a Milwaukee squad car, and although there was a finding of probable cause that officers committed criminal acts, there was no prosecution.   In 2004, unarmed Michael Bell Jr. was shot and killed and the Kenosha Police internal review found no wrong-doing after only 2 days.  Despite that, the city settled the lawsuit for $1.75 million.  Michael Bell Sr. then used the money for billboards and fullpage newspaper ads.  The settlement outraged the police – but the city and the insurance company doesn’t hand out that type of money unless there is a reason for it.

In any event, the bill, AB 409, now requires:

  • An investigation by two outside investigators, one of whom is in charge of the investigation;
  • Any internal investigation may not interfere with the outside investigators;
  • The outside investigators submit their report directly to the District Attorney; and
  • If the District Attorney does not prosecute, the outside investigators are required to release their report to the public.

This is a good start on what is needed.  As an example, in Dallas, Texas, a former officer was recently indicted for aggravated assault for her actions in shooting an unarmed carjacking suspect who had his hands up and was surrendering.  She is the first Dallas officer indicted in 41 years for an on-duty shooting.

It all depends on how the individual agencies implement the law.  For example, the policy issued by the Madison Police after the law is, in my opinion, not compliant with the new law.  For example, the outside “lead” investigator is allowed to “observe” the Madison Police department investigation and submits his observations.  It is not to contain the facts of the case, but only if the investigation was impartial.  The policy also states that the Madison Chief of Police is the sole authority on whether an officer is to be arrested.

That hardly seems to meet either the spirit or letter of the law.

 

 

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

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ExCop-Lawyer:

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…

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Trekkies to Get Their Day in Court

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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

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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

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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

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ExCop-Lawyer:

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-Lawyer:

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…

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