Monday, September 15, 2014

COPPING A FEEL OUT DURING STOP & FRISK; COP SHIRT CAMERAS: AFTER THE MICHAEL BROWN SHOOTING AND OTHERS, SPOKANE POLICE DEPARTMENT IS DOING A PILOT PROGRAM WITH THE CLOTHES CAMERAS & TAKING PUBLIC COMMENTS ON THEIR POLICY WITH REGARD TO THE NEW TECHNOLOGY, THAT ALLEGEDLY CUTS DOWN ON UP THE 88% OF CITIZEN COMPLAINTS . . . WHAT, WHY, WHEN AND HOW SHOULD THE CAMERAS BE USED? WHAT ABOUT DOMESTIC VIOLENCE CALLS? NOW IS YOUR CHANCE TO GIVE INPUT, OR FOREVER SHUT THE HELL UP! AND THEN DON'T COMPLAIN IF YOU DON'T LIKE IT! GOOD LUCK LAW ENFORCEMENT OFFICERS ACROSS THE COUNTRY, STICKY BUT GREAT NEWS, FOR BOTH YOUR PROTECTION AND THE PROTECTION OF CITIZENS!

Won't Be Copping a Feel Anymore--LOL!  Just Kidding

I am first going to preface my writing today, with the fact that being a law enforcement officer of any level, colored uniform, or rank, is, to say the least a demanding, tough job, that calls for split second decisions, implementing street smarts, with department policy, within the confines of the U.S. and state Constitutions, while apprehending, detaining, questioning, arresting, gathering facts and evidence, interviewing witnesses, booking, interrogating, jailing, and incarcerating an alleged law breaker, offender, suspect or defendant . . . an hell of a lot of stuff going on within a short period of time, with not only the public looking over your shoulder, your boss, which may be a mayor, the public if you are an elected sheriff, and in some respects prosecutors of all levels, depending on the nature of the crime, where it took place, and what laws were violated, the press, the victim and perpetrator's family, along with political heat, which could be nationwide, as in the case of Michael Brown, Trayvon Martin, and many others.

So, from a constitutional law attorney, who has trained cops, worked with them, written manuals for them, with a particular emphasis on evidence gathering, and sued them, opposed them, and defended against them, I will try to take all that into consideration, and try to help you come up with the best policy, that will protect you from bad ass con law chicks like me, since I am trying to turn over a new leaf, and take a neutral role, having first started on the prosecutorial side of things, then the civil rights aspect, and then criminal defense, I want to approach this blog by means of helping, warning, adding insight, caution, protection, maximizing your government immunity, and why, giving you something of substance that will be best for you and the public you serve.  In addition, as cop shots throughout the nation, set up new policy, training, and implementation of this device, they do it right, minimizing any possible lawsuits, with a smooth transition into a level of law enforcement that is, I believe of great benefit to you, substantiating claims, regarding the facts of incidents that to the public may look, to be quit the opposite, leaving us angry, disheartened, wondering if you are on our side, protecting us, or protecting yourself, in this country, that all of us love, but are seeing our rights dissipate, being evaporated, and even trampled on . . . we can't have this!

Common Law Principles That Must Be the Bedrock of any Policy

FIRST, LOOK AT DASH CAM POLICIES
I would first suggest that you look carefully at the policy manual on the use of dash cams, used in your squad cars . . . I am sure that you had to do similar test pilots, take public comments, get attorney generals opinions, and that it a great starting point, without reinventing the wheel, plus, you might be shocked to review old policies, and see if the department has strayed from the original intent and law, with regards to that bit of technology, that has become second nature to cops now, but a very useful tool, to both protect and defend your actions, nor a great tool for a criminal defense attorney, or civil rights attorney to use against you; i.e., see KSL, Cedar Man Tasered, or Cedar City's Finest . . . scary, when a client presents an attorney, a prosecutor, or civil rights attorney with this type of information, that can't be denied on camera, with the cops, telling each other to turn off the dash cams, as in my case with client, Travis Braun, one of the plaintiffs in a $56.7 million lawsuit for civil rights violations, of state and local officials, while acting under color of law . . . or to put is simply, the criminal justice network and system!

SECOND, UNDERSTAND THE CASTLE DOCTRINE
In the newspaper article, in the Spokesman Review, your wise police chief, in asking for public comments, getting citizens vested in the process, which is great, and a smart idea, but there was a particular request for ideas, suggestions, and issues dealing with a call a police officer might get involving domestic violence, one of my specialty areas of law and practice, having written the domestic violence and sexual assault manual in Utah, on the police portion of the manual, while the prosecutor portion was written by a more season attorney than I was at the time . . . now this situation posses many problems, not only from a safety prospective, but a constitutional prospective.  

Domestic violence calls, can be the most dangerous call an officer will go one, because, you  have the heart of a family or a couple involved, who consider their affairs, their affairs, a private matter, something they don't want anyone to know about, and if they do, say a wife calls, she may just want you to calm the situation down, but you see that a crime has been committed, evidence of injury, battery, or spousal abuse; therefore, necessitating going beyond the peace officer role, to the law enforcement role, which may trigger anger, not only in the man, if you need to arrest, but in the woman, who didn't want the call to go that far, now in fear of retaliation when he gets out of jail, problems with kids, jobs, and the embarrassment of the cops showing up at the door.  And it has not been unheard of, for the victim to jump the officer, while arresting the offender, and plunge a knife in his or her back, trying to stop the arrest and protect their spouse.

GRADATION OF SEVERITY--IF A CRIME HAS BEEN COMMITTED TURN IT ON
And maybe laying out that scenario that way, would suggest, the way you should approach a domestic type call, on a sliding scale, gradation type approach, dealing with the use of a shirt camera, that on a normal call from a neighbor, or even one of the spouses, you approach, with camera off, unless dispatch has filled you in on the severity of the incident.  I am unfamiliar with the mechanics of the camera or the device, as to how hard it it to turn on, and whether or not there is a red light showing when it is turned on?  So, understanding that limitation and lack of knowledge, account for that in your understanding a use of this information, but if it is easy, and undetectable, as you see, that there has been more than a verbal fight going on here, and there is blood, bruises, furniture turned upside down, kids crying and telling you what happened, then kick that camera on!    This is where a wellness check turns into a crime, once that happens, they do it, regardless!

As most of you know, that a victim, even injured, may recant her/his story, even before you are out of the door, but a crime is a crime, not the officer's call, and usually, at least it used to be in Utah, that the cops and the prosecutor, proceed, regardless of the victim's wishes, if there has been a crime . . . why, because, domestic violence, usually is not a one time shot, and escalates with time, and most victims will not leave their abuser, until there have been 8 to 9 very severe incidents of abuse, you know the dance, honeymoon stage, walking on eggshells, then the abuse, over and over, repeating the cycle!  So, understand the nature of the crime, the dynamics, and then proceed with your work, and some of this, will be discretionary, and you will have to make a judgement call, as to when things just needed your presence to stop the fighting or when it has crossed the line to abuse.

GUIDING PRINCIPLES FOR THE CASTLE DOCTRINE
Guiding principles: (1) a man/woman's home is their castle, and they are the boss, whether they rent, own, or are there at the invite of another party--thus kicking the 4th amendment protections from unreasonable searches and seizures, and a camera, like a license plate scanner if a search and seizure, in its fullest extent, because you are going behind closed doors, and there must be probable cause to believe a crime has been committed, to violate that sacred doctrine, the castle doctrine, however, as you know there are exceptions to the 4th amendment, exigent circumstances that merit entrance, cameras, evidence gathering, before evidence can be destroyed.  (2) do all that you promised to do, you have a contract, so to say with the citizens to protect and serve, regardless if they want it or not.  (3) don't infringe on someone else's persons or property, in a domestic violence situation, often the parties, husband or wife, who just wants a peace officer to come on the scene to calm things down, is just a quick stop and detention, just long enough to see if all is okay, maybe, pull each party aside and encourage them to chill out, and a camera in that situation is an invasive, intrusion . . . use the least intrusive, least burdensome, means of dealing with the situation, and that can only be your call, a tough one, but crime is crime, and the law is the law!

Third, Constitutional Concerns

FIRST AMENDMENT--FREE SPEECH & REDRESSING GRIEVANCES
This on is a hot button issue for the public, and they have a right to peacefully assemble, and that is the operative word, peacefully, and as long as the citizens, whether it is a protect, or a gathering, and it is peaceful, you should leave things pretty much alone, don't need a camera, even your presence, can be a deterrent, and can put a damper on the spirit of the gathering or association.  Let me give you several examples, of gatherings, I am aware of: 

(1) in Missoula, Montana, a friend of mine, who is a noted environmentalist, with groups of followers, and he organizes protests, sit-ins, and picketing against the development of coal, and the number of coal trains passing through Montana cities each day, with the health risks and all.  Now he his perfectly within his right to assemble, associate, and express his opinion; however, if he and his friends, stand on the train tracks, and block trains, that is a crime, and whether they are peaceful or not, they have not only endangered themselves, but have broken the law regarding the free flow of transportation, shipping and other laws of commerce . . . hit the cameras when approaching them, they have crossed the line.

(2) the Bundy Ranch v. BLM, Bunkerville, Nevada, the feds had heard that militia and others were coming down to protect the government taking of Cliven Bundy's cattle, operative word, private property, with even local constitutional law oriented sheriffs from Iron County and surrounding areas, there to help protect the rounding up of Bundy's cattle, but in anticipation of the onslaught, of protesters, the feds set up a first amendment zone . . . nice, but wrong, the whole fucking country is a first amendment, free speech zone!  People are getting more and more educated on their constitutional rights, so law enforcement officers better get acquainted too, or you will look the fools.  And, you will get an even worse backlash, like the militias showing up, to enforce those rights, and that is their second amendment right to do, with guns, come to guarantee a free state!  The issue was paying his fees, and how best to make him comply with the law, the BLM didn't pick the most viable option, and they were forced to back down.

(3) in the Michael Brown, Ferguson, Missouri, shooting, the worst thing the other law enforcement officers could have done, is circle the wagons, defend the cop, and start bringing in tanks, military equipment, and tyrannize, peaceful protectors, and ignore looters, or worse, loot themselves.  Cops need to treats errant cops, like any other citizen, not stand by your man, no matter what lame ass thing they do!  That makes for poor public relations, poor image, and terrorizes the very people you are to be protecting, only protecting your own, when there are many issues and questions to be answers, delays, with holding information, is so bad in a situation like that.  This is not an us vs. them situation, but a right v. wrong situation, and it should be handled that way.  And once, Michael Brown, got belligerent, like Officer Wilson, said, that is a great time to hit that baby, and turn on the camera, for two reasons, to keep the cop honest, and to get a record of the facts to support your story, or his, for that matter.  Not jumping to an officer's request to get out of the street, is not something to go to the mat over, to kill a kid over, jay-walking?  This was a a residential street, not even the type of street you think you could get arrested for jay-walking as far as I could see, the kid was going to his grandmother's house, in a neighborhood.  But, the cops, in this situation, also, created a free speech zone, now I am not sure who made up the rule or policy, that protesters, had to keep walking, or moving, going up and down the street, it could have been Officer Ron Johnson, but, as I said, the whole country is a free speech zone, and I am not sure that forcing the protesters to walk, or not stand still, would be constitutional, it may, however, be an issue of safety, which is okay, cities, through their cops, are responsible for the health, safety and welfare of their citizens, but that doesn't trump rights, but may be practical, and most citizens are reasonable, want to stay safe, and see the rational behind the order.  And they all seemed to be okay with that.  But this was and still is a community in mourning, not only for Michael, who would have started college the next day, but for all the other boys who have been shot, and what connotations or message that sends to blacks, nationwide.

FORTH AMENDMENT--BIGGIE FOR CAMERAS
Of all the constitutional amendments that create problems for law enforcement, it is the 4th amendment, and cop shirt cameras are just going to complicate the situation, while making things better on the same hand . . . 4th amendment savvy is imperative!  Be well aware of the items that the amendment lists as being protected from unreasonable, the operative word here, unreasonable searches and seizures! So, you have persons, places, homes, papers and affects protected!  In my Brock securities civil rights case, I argued that computers are modern day papers, and hard drives, are where we store our most sensitive files; therefore, for the Division of Securities to come in without a warrant, shoving even an administrative subpoena in front of my client's face, without giving him a chance to read it, then proceeding to download all hard drives on office computers, was a violation of my client's 4th amendment rights.  And the United States Supreme Court, in USA v. Jones, held that vehicles are affects, therefore protected from unreasonable searches and seizures, when the FBI wanted to put a GPS tracking device on an alleged drug, king pin's Jeep Cherokee, that his wife was driving . . . NO!  Plus the warrant the FBI was using was stale.

You are going to be under the gun, to really understand the 4th amendment, with regards to Miranda, arrests, stop and frisk, Terry stops, exigent circumstances, plain view doctrines, etc.  Now, I don't know that you need to turn on a camera, every time you stop and question someone, or ask for their I.D., but be aware, that these are the hot button issues that get sticky, gnarly, and you better know your stuff.  I know this is not much guidance, but, you will, I would guess, feel it in your guts, when a situation is going into a gray area, and you may want some proof, backup, and evidence that you did the arrest right.  The really great thing is, that I would guess that officers are at their best, when the camera is on!  And that is not a bad thing!  Actually, OX Communication, is not a bad thing to practice, and you will get a lot further with the public, doing exactly the same job, regardless of how hard that is, it is not what you say, but the way you say it, that counts!  Most officers, need to go from G.I. Joe, back to Officer Friendly!  LOL!

Nobody, likes to be bossed around, and officers are good at that, and often that goes into their personal relationships also, so practice make perfect.  Society has to give you some type of credibility to do your job, however, I strongly feel that respect should be earned, not just given!  I know, that in defending my clients, or dealing with my student, if they felt like I treated them fair, there were no complaints, even if they didn't like what I had to tell them, didn't like the outcome of the jury's decisions, but they got to tell their story, and that goes to cops too, let people talk, don't do what Officer Wilson did, getting pissed off, driving the squad car up to Michael and screeching tires, then hitting him with the door, and telling them to obey his commands!  Totally not cool, and anybody treated like that is going to get pissed . . . we are often the captain of our own ship, we determine our destiny, and that attitude that doesn't fly with cops, doesn't fly with citizens either!  

14TH AMENDMENT--HUGE--DUE PROCESS & EQUAL PROTECTION

This is the amendment that is most cited for being violated for civil rights violations . . . when you are dealing with racial issues, gender issues, age issues, religious issues, or disability issues, be careful, when you are acting either in your official or individual capacities under color of law!  It is not okay to discriminate, deny rights, enforce the law in a way that is not uniform, favors or disfavors one class of persons over another. You can't racially profile, or stop and frisk minorities more than you do the majority, tasering, cameras, and all things should be used judiciously, uniformly, and constitutionally!  I don't have the time, nor the ability in this blog, to do much more than help you to see some of the hot topic issues, and how they might become a problem to you, and when you might want that camera on, and always error on the side of safety, not only for yourself, but for the person you are dealing with . . . I would guess that many of the officers, 4, who chocked Mr. Garner, in New York for selling single cigarettes, never would have acted that way, with cameras on . . . so they are not a bad thing!

Bottom line, these cameras are catch 22 devices, they can be for you or against you, but I think they are going to keep you honest, more kind, and a better cop.  There will be trial and error, like in any criminal or even civil situation.  Remember to use the reasonable man, reasonable officer standard!  Your actions, while using or not using the camera, should not shock the conscience of the reasonable person, and many people have cameras on their phone already, and I would advice my clients to get them out when interfacing with a cop.  And it is amazing what happens, the situation calms down, officer's attitudes, as well as the person they are dealing with, all of the sudden, start, playing for the camera!  These cameras are to protect you as much as anything, and don't fail to turn them on, if you are planning to abuse a person, use excessive force, or whatever, you are tempted to do when tempers flare, because the chances, someone else is going to catch it on camera is very high anyway, but a close up, may actually help, so use it if you think it will help, and maybe as an anger management tool!

The 5th and 14th, can't deny life, liberty or property, without due process of law . . . an arrest is a liberty interest!

Government Immunity Protections

If you as an office, have used due diligence, in trying to follow, to the best of your knowledge and ability, given the amount of time you are on the force or in the department, following standards and guidelines put forth in your policy manual, which is your employment bible, which should reflect constitutional objectivity and enforcement, following well formed and long enforced laws, 238 years on the U.S. Constitution, if following well established laws and policies, so this stage you are in, right now, as I write, is critical to your well being.  And if you follow these, you should always be fine, even if sued, challenged, or taken to task, this is the way to stay safe in your job, under the scrutiny of internal or external affairs watchers, like me!

The Spokane Chief of Police, like I said, is handling this very well, in fact, I didn't know he had to take public comments, but that is a wonderful idea, but he cited a web site you can put your comments on, at http://beta.spokanecity.org/police/accountability/bodycamera.  Now is the time to speak up, help out, give scenarios you may have encountered, where you can let the Chief and the cops, know what you think, and how they might proceed, what a great opportunity for community input, making for a better transparent government, that well all want, Sunshine, Open Meetings and Transparency, are model agency actions, and most appreciated.  And if you don't take the opportunity, at the time presented, then like I said, forever keep your fucking mouth shut!  Not cool to bitch and moan after the fact, now is the time

There will also be a public meeting, 5:30 p.m,, October 30, 2014, Cataldo Hall, Gonzaga University.  This is good time to redress any grievances you have with the department too, 1st amendment right!

Good Luck . . . A Dream Come True . . . 80% Reductions in Complaints!  Do Your Homework!





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