Peace Officers and Elections

I don’t talk about politics much, primarily because politics[1]and religion tends to repress discussion instead of encouraging it. I’m going to talk about it here, because it intersects with police work, the public, and the law. At this point, barring something unforeseen, Joe Biden is the President-Elect, and will be inaugurated in January. Yet some police officials somehow believe that any American citizen who voted for Biden is a traitor and should be shot in the head. And yes, they have a right to free speech, but they don’t have a right to be a police officer.[2]

In the first of these incidents, Captain Scott Walden of the Flomaton, Alabama[3]Police Department stated on social media that “The idiots that voted for Biden hated Trump enough to throw the country away . . . [and] they need to line up ev1 [sic] of them and put a bullet in their skull for treason.” Walden resigned after being put on administrative leave for an internal affairs investigation, but claimed that he was speaking of punishing traitors, not “liberal democrats.” Of course, Walden apparently doesn’t understand what treason[4]consists of, even though it is the only crime defined in our constitution. Voting for a presidential candidate isn’t treason.

In Platteville, Colorado[5]officer Jason Taft was put on leave with pay, pending an investigation of his comments on Facebook that he was “ready to leave my job just so I can hurt these people. . . .”

In Marshall, Arkansas,[6]Chief Lang Holland resigned after his posts on a social media site became public knowledge. Holland posted “Death to all Marxist Democrats. Take no prisoners leave no survivors!!” and “Never let them forget they are traitors and have no right to live in this Republic after what they have done.” The site he used was known for its alt-right connections, and Holland was a member of the “Ozark Proud Boys” group. 

I’m sure that there are more of these examples out there, but we need to make sure that they are put out of law enforcement, but likely not for the reason that you think. I don’t care what they believe, and don’t have a problem with their hatred of liberals. I feel sorry for people like that, whether they are on the left or the right, but we don’t punish people for thought in the country, we punish them for actions.

No, these people should be removed for stupidity. If you have reached a position of public trust like that of police officer, you should be smart enough to know that it is the job of a peace officer to maintain the peace, not to instigate violence. And you should know what the law is, if you are going to accuse someone of violating it.


[1]But for the record, I was a Republican (with libertarian leanings) from my first vote for president, Ronald Reagan, by mail, while stationed at Fort Knox, until my vote for Mitt Romney. In 2016 I supported former Republican Gary Johnson, and in 2020 I voted for Joe Biden as a contributor and supporter of the Lincoln Project. I’m now an independent.

[2]Paraphrasing Justice Oliver Wendell Holmes (before he was on the Supreme Court), who said that a policeman “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. City of New Bedford, 155 Mass. 216, 220 (1892).

[3]Flomation is a town of about 1500, on the Alabama-Florida border, just north of Mobile, Alabama.

[4]US Const., art. III, § 3, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. . . .”

[5]Platteville is a town of about 2700, between Denver and Fort Collins.

[6]Marshall is a town of about 1350 in north central Arkansas.

Dodging Responsibility in the Breonna Taylor Case

When there is a police involved shooting, it is a common practice for the prosecutor to present the case to a grand jury, and to let them make the decision on whether to charge the officer(s) or not. It provides cover for both the prosecutor and the police, as the proceedings are secret. The grand jury either indicts or no bills the officer(s), and they are either prosecuted, or not. The public is happy, the police are happy, and the prosecutor is happy.

One of the reasons that prosecutors like it is that they have complete control over the process. They can, if they want, get a grand jury to indict a ham sandwich (or to no bill a police officer).[1] Here, the prosecutor was the Attorney General of the State of KentuckyDaniel Cameron. And the problem is that he held a press conference to state that the grand jury indicted one officer, Brett Hankison, on three counts of “Wanton Endangerment”,[2] and that the grand jury had found that the killing of Breonna Taylor by Louisville police officers executing a search warrant was legally justified.

There’s only one problem. Cameron never presented the full case to the grand jury, and only presented the Wanton Endangerment case against Hankison. And when he said that he had presented it, one of the jurors[3] filed a motion claiming that Cameron had used the grand jury process as a shield to deflect responsibility and asking that the record be unsealed by the court. And the court agreed, ordering Cameron to release the record to the public. For a judge to do so is highly unusual.

This harms the cause of justice in American society, and specifically in the state of Kentucky. And I’m not the first one to think this, see Roger A. Fairfax, Jr., The Grand Jury’s Role in the Prosecution of Unjustified Police Killings — Challenges and Solutions,[4] or R. Michael Cassidy and Julian A. Cook III, The Grand Jury: A Shield of a Different Sort.[5] Both of these articles point out that in police involved shootings, that an unscrupulous prosecutor can use the grand jury system to provide cover for a situation with bad facts for the police.

That is absolutely what happened in this case. The grand juror in question, Grand Juror #1, has stated, after being released from his oath of secrecy, that Cameron never presented evidence on the killing of Taylor, only evidence on the Wanton Endangerment. According to Grand Juror #1, the prosecution never even explained the law as it related to homicides or justification. Yet on September 23d, Cameron stated that “the grand jury agreed” that the officers were justified in shooting Taylor. That’s not a true statement. Yet because the grand jury proceedings are secret, are protected by law, Cameron could say anything that he wanted to say, with a reasonable expectation that no one would or could effectively challenge him. It is, as Cassidy and Cook noted three years ago:

A prosecutor who wishes to avoid bringing difficult charges against a police officer can present a lopsided case to the grand jury and then, with a wink and a nod, blame the decision not to indict on community representatives rather than acknowledging and justifying the decision himself.[6]

I don’t know about y’all, but to this Texan, that sure seems what Cameron has done here.

I’m not addressing whether the shooting of Taylor was justifiable or not, because for the point of this discussion, it simply isn’t relevant. This is about the process after the fact of a police officer involved shooting, and I’ve consistently advocated for a transparent process that involves:

  1. Having an outside agency, and preferably a state agency, conduct the criminal investigation into the officer’s shooting of the deceased;
  2. Only allow the employing agency to conduct an administrative review, to see if departmental policy was violated;
  3. Having a special prosecutor appointed, who’ll make a charging decision or present the case to a grand jury;
  4. If the officer is not charged or indicted, releasing the report and evidence to the public; and
  5. Using a visiting judge to try the case.

If, however, the prosecutor wants to put his thumb on the grand jury scale, to prevent an indictment, then he can, in the same manner that Cameron has done in this case. Some states, like California, have eliminated the use of a grand jury in police shooting and death cases[7] for that very reason, so that the prosecutor has to be accountable for the decision to prosecute or not. In other states, like Texas, the solution isn’t that simple, as the state constitution requires a grand jury indictment to prosecute a felony.[8]

Daniel Cameron has both harmed and helped the cause of justice in this case. For the former, he has illustrated once again why we need oversight and transparency for government officials. But by so illustrating this, he may help change the process.


[1]This phrase, “If a district attorney wanted, a grand jury would indict a ham sandwich”, was coined by NY Chief Justice Sol Wachtler, shortly after he took office in 1985, and was made famous when paraphrased by Tom Wolfe is his book, Bonfire of the Vanities, as “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted.”

[2]Ky. Rev. Stat. § 508.060, a class D felony, punishable by 1 to 5 years in prison.

[3]Identified by the court as “Grand Juror #1”.

[4]52 Harv. C.R.-C.L. L. Rev. 397 (2017).

[5]51 Ga. L. Rev. 1001 (2017).

[6]Id., at 1004.

[7]52 Harv. C.R.-C.L. L. Rev., at 412.

[8]Tex. Const. art. 1, § 10.

Mental Health and the Use of Police Force

On April 21, 2020, Houston Police Sergeant Benjamin LeBlanc, along with Officers Luis Alvarado, Patrick Rubio, and Omar Tapia responded to several 911 calls about a possibly suicidal person, later identified as Nicolas Chavez. Within minutes, Chavez yelled that he was had mental problems (“MHMR”)[1] and that he wanted the officers to kill him.  By the end of the 15-minute encounter, they had done just that.

Chavez had a piece of rebar in his hand which, due to the darkness and the manner in which Chavez was holding it, the officers believed was a knife. Then Chavez came at the officers, who tried to use a taser and beanbag or soft impact rounds from a less-lethal shotgun to stop him. Neither worked, and one officer fired two rounds from his service weapon, which stopped Chavez. Chavez fell to the ground, but still had the rebar,[2] and prevented the officers from rendering aid. At some point he tried to get up and go at the officers again, and one additional shot was fired, stopping him. From that point forward, Chavez appeared to be unable to get up or stand.

But Chavez was able to pull the taser to him by the wires, until he picked it up in his hand.[3] At that point the four officers fired a total of 21 rounds into Chavez, killing him. And that’s where the problem begins.

You see, the first video was taken by a civilian witness by cellphone and posted to the internet, where the police administration could not control the narrative. It was also impossible to justify, unlike the first three shots. You see, Texas law has a requirement that in order to use deadly force, and that requirement is contained in the “Justification Excluding Criminal Responsibility” chapter of the penal code. It states that deadly force may be used in self-defense when “the deadly force is immediately necessary [] to protect the actor against the other’s use or attempted use of unlawful deadly force. . . .”[4]

And that’s where the problem arises. In the videos, it appears plainly obvious (at least to me) that Chavez was unable to do much more than crawl.  If he can’t even stand, then he cannot charge at someone, and you can reduce the immediate necessity to shot him by backing up and increasing the size of the perimeter. While it may be necessary to shot someone with a taser who is charging at you, it’s not necessary to do so when the guy cannot stand up.

This is also where the idiots will jump up and say that the police don’t have a duty to retreat, and they are correct. But not having a duty to retreat doesn’t mean that retreating is a bad idea. This isn’t the military; we are not taking ground that is paid for by soldiers’ blood. We can back up and wait him out.[5]

At one point in my police career a number of officers from two different agencies sat on a suicidal subject in a car in a parking lot for a couple of hours at shift-change. Ours was armed with a pistol and had fired one shot inside his car, so we established a perimeter and waited him out. My shift was relieved, one by one, by the on-coming shift, and they continued the containment until he got tired and surrendered. Waiting for 15 minutes or so is nothing, and there is no reason that you can’t wait him out.

In any event, after a four-month investigation[6], Chief Art Acevedo fired the four officers, pretty much for the reason that I had a problem with the shooting. The letters informing the officers of their “indefinite suspension”[7] are here,here,here, and here.

Of course, the president of the Houston Police, Joe Gamaldi, had a different opinion. He thinks that Acevedo is throwing the officers under the bus. Of course, Gamaldi have never believed that any officer discipline was appropriate, and who, in the past, has threatened to have his members retaliate against activists.[8] He believes, despite the evidence to the contrary, that “even if you retreat, even if you follow policy, training and the law, you will still lose your job as a Houston police officer.” The problem is that the four officers didn’t retreat, didn’t follow policy, and didn’t follow the law. That’s why they got fired. Duh.

Acevedo isn’t exactly a believer in police accountability,[9] but with the current environment, he is forced to take some type of action. And this is where we need to be, if we can keep the extremists on both sides in their respective corners.

 

 

[1]In Texas, MHMR stands for Mental Health – Mental Retardation and is a State agency designed to deal with those with mental problems, particularly those who have limited resources.

[2]Which officers still believed was a knife.

[3]The using officer had dropped it intentionally to avoid tripping other officers, so they could approach Chavez and render aid.

[4]Sec. 9.32, Tex. Pen. Code.

[5]Yes, I know that waiting him out may resulting in him bleeding out and dying anyway, but that becomes his choice at that point. We don’t have to force the issue.

[6]Which could have been done in much less time.

[7]Under the Texas police civil service law, indefinite suspension means termination.

[8]In the case he was upset about, a Houston narcotics detective lied to get a search warrant, and in the no-knock, middle of the night raid, the two occupants of the home were killed by police. The detective is currently facing felony murder charges, but Gamaldi thinks that it is the fault of activists, not bad cops.

[9]For example, he still believes the police had legitimate grounds to enter the house where the two people died, despite the fact that the warrant was based on a lie.

Prosecutor to Judge: Hold my Beer

In the middle of West Texas is Midland County. It’s due south of Amarillo and due east of El Paso. Just to the west of it is Odessa. This is the heart of both West Texas and the “good ol’ boy” country. It is also where a prosecutor worked as a law clerk for a state district judge at the same time that he was actually prosecuting the same case. The state obtained a conviction against Clinton Lee Young for the murders of two men, Doyle Douglas, 41 and Samuel Petrey, 52, and in 2003, District Judge John G. Hyde sentence Young to die by lethal injection. During that time, Weldon “Ralph” Petty, Jr. was both working on the prosecution team that was trying the case and as a legal clerk for Judge Hyde, evaluating and researching the pleadings in the case.

Young, for his part, asserts that he didn’t shoot anyone, and that one of his co-defendants did it. Thus far, that position has been rejected by the courts, and the co-defendants were sentenced to 30-years and 15-years for kidnapping. None of the appeals addressed the conflict of interest in a prosecutor helping a judge on a death-penalty case. So recently, as the defense team was filing a last minute appeal based on possibly false testimony, the prosecutor assigned to defend the conviction called Young’s lawyers.

The ADA in the case, Eric Kalenak, told Young’s counsel that Petty had worked as a law clerk for the judge in the case. The Midland County DA also recused themselves from the case. County records supported this notice, but we’ll get into that a little later. This is just flat out prosecutorial misconduct on a number of different levels. First, one cannot work for both the executive branch (DA’s Office) and the judicial branch (law clerk) at the same time.

Next, it compromises the position of the Court, and is evidence of bias towards the prosecution. Think about this for a second. Once Young was convicted, and his attorneys were filing for post-conviction relief, Petty was preparing and submitting briefs on the State’s response and then put on his judicial branch hat and recommended to the judge how the court should rule. I did the same thing when I clerked for a criminal district judge, and normally the clerk’s recommendations are accepted, with minor polishing by the judge, as the position of the court. The difference is that I wasn’t also one of the parties in front of the court.

Third, it consists of ex parte communication with the court. That’s forbidden except under very limited circumstances. It is the reason that most communications with the court go through a court coordinator or administrator, and why the lawyer sending the message normally copies the opposing party.

This is a big deal, big enough for Petty to potentially be disbarred, and had Judge Hyde not passed away in 2012, for him to be removed and also disbarred. It is clearly enough to require a new trial for Young.

Now comes the really, really fun part. The Midland County Treasurer records indicate that this wasn’t a one-off episode. Petty reportedly performed both jobs for at least 17 years. It is not known how many defendants that this could effect, but Young is likely the very tip of the iceberg. We don’t have a clue though, because the Midland County DA isn’t saying, and the court has thus far refused to allow the defense team to depose Perry or to conduct any discovery.

Is Young guilty? Based on what was presented, probably. Can we know for sure when the court and the prosecution was working together? No, absolutely not.

Update on Kenosha

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

There is further information relevant to the situation in Kenosha on more than one front. This deals with both the situation with Jacob Blake and the situation with Kyle Rittenhouse. I imagine that both sides are not going to like what I have to say, not that this will stop me from saying it.

Jacob Blake

During the police response to the scene, officers were informed that Blake was at the scene and was “not supposed to be there.” At the time he had active arrest warrants, and police were reportedly informed of this. The warrants were for third degree sexual assault, criminal trespass, and disorderly conduct.[1] So the police knew that he was wanted for a violent felony, and when they arrived, they attempted to arrest him.

Blake resisted and was tased, without apparent effect. After he was tased, he got up and you can hear police yelling for him to drop the knife. And a screenshot from the original video shows Blake holding what appears to be a Karambit or Hawkbill bladed knife.

So now you have an armed subject who is resisting and not following commands, entering a vehicle which has three children in it. And that doesn’t even begin to address the other issue. At least one site evaluating the shooting states that Blake told the officers that he had a gun in the vehicle, although isn’t yet confirmed. In any event, these factors change how we look at this individual shooting, at least by a lawyer with a police background.[2]

Under the guidelines in Tennessee v. Garner,[3] an officer may use deadly force if:

…it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Now you have police officers who are attempting to arrest a felony fugitive of a violent crime, who is armed, attempting to enter a vehicle with three children, and attempting to either flee or obtain another weapon. You’ve arguably got all of those factors now. That would make the shooting justifiable.

That’s not, of course, going to change the perception of the rioters/protesters.

Kyle Rittenhouse

In the other developments, more has come out about the 17-year-old who killed two and wounded a third on Tuesday. First, I would like to clear up some confusion about Rittenhouse. Wisconsin is like Texas in one critical regard as to trying Rittenhouse. In both states, every 17-year-old is tried as an adult. They are arrested as an adult, held in an adult jail, and tried in an adult court. For the purposes of state criminal law, they are an adult. So Rittenhouse is not going to be handled as a juvenile, nor should he be in this case.

Second, although Rittenhouse will be tried as an adult, he’s not old enough to legally carry a firearm, being under 18 years old. He also won’t face the death penalty, although not because of his age.[4] Wisconsin has not allowed the death penalty since 1853, and only had one execution after becoming a state in 1848.[5]

Rittenhouse apparently only killed two white people, Anthony Huber (on the left) and Joseph Rosenbaum (on the right). He was able to walk out of the area, past law enforcement, despite the fact that witnesses and bystanders were shouting to the police that Rittenhouse had just shot people.

Then Rittenhouse went home to Illinois, where he was subsequently arrested on murder warrants from Wisconsin. He is currently being held in juvenile facilities in Illinois, pending extradition.

And the actual narrative is even more interesting. The New York Times pointed out that there were two bursts of shooting, with video and photos. Rittenhouse was being chased and someone fired a handgun.

Someone, presumably Rittenhouse, returned fire, about 4 rounds. Rittenhouse tried to flee, but then he trips and falls to the ground. Then he is kicked in the head by the guy rolling on the right (after the kick), and he is hit in the head by Huber’s skateboard. Rittenhouse then shot Huber in the chest and the guy with the handgun.

That’s pretty clearly self-defense. And that pretty much trumps everything else. Can they charge him with a misdemeanor for carrying the gun underage? Sure, and I wouldn’t have a problem with that. Can they make a murder charge stick? I doubt it.

Although Rittenhouse carries some blame, so do others. If he was there as part of a group, why did they let him wander off and get separated? Hell, why was he allowed to be there in the first place?

The only thing that is clear is that nothing is ever the way it seems.

[1] In Wisconsin, third degree sexual assault is sexual intercourse without consent, punishable by up to 10 years in prison. The other two are misdemeanors.

[2] And there will be plenty of others that disagree with me, I’m sure.

[3] 471 U.S. 1 (1985).

[4] See Roper v. Simmons, 543 U.S. 551 (2005), which prohibited the execution of those under the age of 18.

[5] The one execution, of a John McCaffary, for the murder of his wife, was in 1850, in Kenosha, and was attended by about 3,000. It did not go well.

The Response of the Oppressed

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

In 1862, in Minnesota on the Lower Sioux Indian Reservation, the Santee Dakota Indians were starving to death. They had agreed to cede land to the United States and move onto the reservation, and the government agreed to provide for their needs, including food.[1]

In 2020, blacks had suffered for years with young blacks being killed by police officers, culminating in the death of George Floyd in Minneapolis, without officers being held accountable for misconduct.[2] In both cases, the affected population did what people do when they have taken all that they can take and have no other readily available options—they reacted with violence.[3]

In Minnesota, 158 years ago, the Santee forced the Indian Agent to issue them partial rations, and then broke out of the reservation, waging war against the whites. And the government reacted as one would expect, sending the Army against the tribe.[4] In Minnesota, riots broke out, as they also did in Kenosha, Wisconsin, following the shooting of Jacob Blake Jr. by a police officer at a domestic violence call.

In this latest officer-involved shooting, about which Scott Greenfield wrote and posted cellphone video, Blake is shown being shot seven times in the back at point blank range. Blake was unarmed, and from what I can tell, not a threat to anyone. I simply cannot see how the shooting can be justified, but we don’t have all of the information yet, so we should withhold judgment.

Even with the additional cellphone video, there is no indication of danger that I could see. But, as Scott noted, Kenosha is burning, just like Minneapolis burned, and Ferguson, Missouri burned before that. And just like towns will burn in the future, if we don’t get a handle on things.

But the dominant community is reacting in the same manner today as they reacted in 1862. The problem is obvious, that those who were starving to death were at fault and shouldn’t have rebelled. The military commission had sentenced 303 to be hanged, but they had to get President Lincoln to sign off on it. He originally said that only those who raped white women would be executed, but found only two Santee met that criteria.

In the meantime, the voting public of Minnesota was calling for the entire tribe to be put to death.[5] So on December 27, 1862, in the largest mass execution ever conducted in the United States, 38 Indians were hung from one large gallows in Mantako, Minnesota, in front of 4,000 spectators and 1,500 soldiers.

In the current day, we’re not hanging them, but we are doing next to the same thing. President Trump has declared that the Black Lives Matter movement is a “Marxist” group who want to kill police officers.[6] PragerU[7] released a video, “Black Lives Matter is a Marxist Movement,” that has garnered over a million hits. At RallyPoint, conservative military service members and veterans site, the same is occurring, primarily focusing on Seattle and Portland, all with comments about how BLM wants to destroy the American way of life, meaning the white American way of life.

OK, for the sake of argument, let’s say that BLM is a Marxist organization. What other options do blacks have at this point? Blacks are dying at the hands of police but no one is interested in stopping it. And because of that, conservative whites are attacking the character of the movement.

So let’s look at who’s actually doing something, versus who is just criticizing and who’s actually in the arena. If you don’t want oppressed people to flock to “Marxist” organizations, you have to give them a viable option.

The Santee didn’t have an option in 1862. They could stay on the reservation and starve, or they could break out and try to survive. Today, blacks have the same option. They can either do nothing and continue to die at the hands of the police, or they can join a group that will actually do something.

Think about that—and what would you do in their position?

[1] Gregory J. Prickett, Here Were Hanged 38: Using the Image of Law to Terrorize and Subjugate American Indians 7 (July 26, 2014) (unpublished J.D. rigorous writing assignment, Texas A&M Univ.).

[2] Gregory J. Prickett, Prickett: Taking a Knee, Simple Justice (May 31, 2020).

[3] As I’ve stated before, numerous times, I’m opposed to rioting and the destruction of property or the injuring of people. Those who riot should be identified and prosecuted.

[4] Here Were Hanged 38, at 7. The Army also illegally tried the Santee and sentenced 303 to death by hanging.

[5] Here Were Hanged 38, at 8.

[6] Some of the leaders of BLM have stated that they are Marxist, like Patrisse Cullors.

[7] PragerU is funded by two Christian Nationalist brothers, the Wilks, who want to install Biblical law in the United States.

Open Letter to Grant Scheiner, President of the TCDLA

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

Dear Mr. Scheiner:

On July 27, 2020, you forwarded to all members of the TCDLA that the Executive Committee had decided to participate in the public lynching of the State Bar of Texas President, Larry McDougal.

First, I’m going to point out some things that should have been considered before you took action on behalf of the entire TCDLA, especially without consulting the membership.

  • Larry made comments in response to a question on electioneering. These remarks were off the cuff and were not researched. And they appear to be wrong. He stated that he made the comments in his personal capacity, not his capacity as the SBOT President.
  • He has apologized for any offense that this may have caused and laid out what he intends to do to moving forward.
  • He has followed through on this by having meetings with concerned groups of the SBOT. Some of the groups don’t like his apology or his statements and are pressing their own agenda.
  • People who have known Larry for years, and in some cases, decades, have repeatedly said that he’s not a racist.

Now I’m going to point out some other issues that as a lawyer you should have taken into consideration, and that I would hope you would take into consideration for any of your clients.

  • Larry was a police officer and a deputy sheriff for about 15 years before he became a lawyer. Being a cop is not just another job, it changes a person no matter who they were before. Gallows humor and inappropriate comments about street justice are not uncommon.
  • Someone had to be very interested in doing harm to Larry to search through his social media posts, especially going back five and eight years. What was their motivation? Are they some type of social justice warrior?
  • Larry has been recognized on multiple occasions as a top criminal defense attorney in his part of Texas, and that doesn’t happen if one is a racist. That happens when the attorney in question works hard and diligently in his client’s best interests.

I’m sure that some people will want to jump on me and my past posts because of my support for Larry. That’s fine, you can start at the stories I did about the shooting of Tamir Rice, or Alton Sterling, or any number of other incidents involving the police and black people. You can look to where I wrote about police driving toward the sound of gunfire, and what they do to protect society. That should give you plenty of ammunition to come after me.

And it won’t matter that I’ve called for reforming how we handle police shootings and use of force before that, because once the lynch mob is formed, it has one goal, and it doesn’t matter what justice requires.

But I’m not the only one that supports Larry, nor am I the only one who has objected to the TCDLA letter on Larry to the SBOT. There were a number of comments on the TCDLA listserv, none of which condemned Larry, and one noted that his “offense” was in not being respectful enough of Black Lives Matter “and failed to hate on the police enough.” Another noted that he wasn’t consulted, disagreed with the letter, and was leaving the TCDLA over this issue.

Less than half of the people commenting at a SBOT special meeting called to lynch discuss Larry wanted him to resign. Some pointed out, like I have, that he’s not a racist. Some defended him on free speech grounds.

On the back of my business card is a quotation from Clarence Darrow, one of the best criminal defense attorneys in our nation’s history. It says “You can only protect your liberties in this world by protecting the other man’s freedom. You can only be free if I am free.” That quotation comes from Darrow’s defense of twenty alleged members of the Communist Labor Party against criminal charges leveled against them not for the actions they took, but for what they thought and said. They were being tried for what they believed, for thought crimes.[i]

But the lynch mob still gathered. It wants to take Larry out and hang him. As criminal defense lawyers, we’re supposed to defend people, one person at a time. That’s not what you and the TCDLA are doing. No, you are in the street, screaming “git a rope!”

Which side would you rather be on? Protecting another man’s freedom? Defending people even when they screwed up? Standing between that person and the lynch mob?

Or carrying a torch and a rope?

I’m sorry, I can’t do that, either as a criminal defense lawyer or a former cop. I’ll stand between Larry and the mob. And the TCDLA should be standing there with me, not with those who want to lynch Larry.

[i] As a side note, all twenty were convicted and sentenced to between one and two years in prison, affirmed by People v. Lloyd, 136 N.E. 505 (Ill. 1922).

Honest, He Tripped and Fell, All by Himself

UPDATED

It appears that the tide is turning on police misconduct and public leaders just blindly accepting the police narrative. This Saturday, the Erie County District Attorney John Flynn charged Robert McCabe and Aaron Torgalski with Assault in the Second Degree.[1]This is just days after the assault, and after both officers had been suspended without pay.

Of course, McCabe and Torgalski have co-workers that apparently think that they did nothing wrong, as they resigned from the riot unit, but not the police force, in protest of the suspension of the two. UPDATE: It’s come out that the 57 members didn’t resign from the riot squad in support of McCabe and Torgalski, but because the union president sent an email that the union would no longer provide legal representation for incidents that occur due to an officer’s actions in the riot squad or the SWAT team. DA Flynn had a message for them, too, and it wasn’t conciliatory. Flynn told the other officers “to think about the oath they took when they were sworn in as police officers.” 

The Buffalo Police Benevolent Association came out in support of the two officers as well, but this didn’t seem to affect the politicians. New York Governor Andrew Cuomo stated that officers who crossed the line would be held accountable. The Mayor, Bryon Brown said that “This union has been on the wrong side of history for a very long period of time and they have been a real barrier to reform of policing in the city of Buffalo. . . .”

The Police Department initially said that Martin Gugino “tripped and fell” which is quite simply a lie. But everyone has a video camera in their phone nowadays, and the video came out rapidly. The incident happened on Thursday, the officers were suspended on Friday, and they were criminally charged on Saturday. That’s what needs to happen. What needs to happen next is to find out who reported that Gugino “tripped”, and an administrative investigation (at a minimum) needs to look at that. We cannot allow officers to lie on reports, especially about the use of force.

And then there’s the guys at PoliceOne.com, who think that the sky is falling. Comments are all over the place, like:

What bull shit. Hope these two sue and get paid.

Ol Martin was intentionally trying to impede the officers and got what he deserved.

Each one of those officers should take their riot control gear and hand it to their local politician starting with the prosecutor.  When they do explain to that politician they are now responsible for controlling the crowds and walk away.

They don’t get it, they are used to being able to do what they want, but politicians are starting to look at what the people expect of them, as far as controlling the police. The public wants effective law enforcement, but they don’t want abuse.

Gugino, 75, was hospitalized, and remains in the hospital in serious condition. 


[1]See NY Penal Code, §120.05(12), “With intent to cause physical injury to a person who is sixty-five years of age or older, he or she causes such injury to such person, and the actor is more than ten years younger than such person. . . .” It’s a Class D felony, punishable by 2-7 years in prison.

We Issue Body Cams for a Reason, Chief

Ed. Note: This article was originally posted at Simple Justice, the award winning legal blog run by my old mean-ass editor at Mimesis Law Fault Lines, Scott Greenfield.

On Monday, June 1, 2020, Louisville Metro Police Chief Steve Conrad was fired by the mayor, Greg Fischer. While this sort of thing happens all the time, since most chiefs serve at the will of the mayor or the city manager, depending on the structure of city government, this was an unusual case. 

First, the chief was fired because the last two officer-involved shootings, both of which resulted in the death of honest, hard-working, black citizens who were not violating the law, were not caught on body cam video.[1] Second, and no less important, was that Conrad was set to retire at the end of the month.

On Friday, March 13, 2020, at about 1:00 a.m., Louisville Metro Police (LMPD) executed a no-knock search warrant at the apartment of Breonna Taylor. The warrant was looking for someone who did not live at the apartment and who had no connection with either, Taylor or her boyfriend, Kenneth Walker. Witnesses state that the police did not knock or otherwise announce themselves. Walker, who thought that his home was being broken into, fired at the people entering and struck LMPD Sergeant John Mattingly in the leg. Police responded by firing 22 times, hitting Taylor at least 8 times and killing her.

Walker, after being jailed for two weeks, was released, which of course outraged both Chief Conrad and the local police union president. At the same time, it turns out that the individual that police were looking for was already in police custody. And in all of this, there was no body cam video, because members of the “Criminal Interdiction Division” are not issued the cameras. Taylor’s family has filed a federal lawsuit. The Federal Bureau of Investigation is investigating the matter for civil rights violations.

After protests started in Louisville following the death of George Floyd in Minnesota, police and National Guard were going to clear an intersection of people. A shot rang out, and people started firing. David McAtee, a barbecue store owner at the intersection, was dead. At least two LMPD officers[2] fired their weapons. And although these officers were equipped with body cams, not a single one was turned on. The FBI is looking into this case also.

Two officer involved shootings and no video? Governor Andy Beshear said flat out that this was unacceptable. Mayor Fischer apparently thought so too, firing Chief Conrad shortly after the lack of video became known. Fischer also noted that LMPD policy required that the cameras be turned on in those type of incidents, and said that disciplinary action was possible. 

I’ll point out that the denizens over at PoliceOne are in shock, they can’t believe that the chief got fired, and arbitrarily decided that if police get shot at, the rules go out the window. None of them seem to understand what is happening right now. LMPD first obtained about 1,000 body cams in 2015.[3] Yet they don’t issue the cameras to officers who are going to use a ram to bust down a door, and the officers that do have them don’t seem concerned about turning the cameras on.

And now something I predicted is happening. The elected officials are holding police administrators responsible for not supervising their officers. The elected officials are to the point that they are not going to blindly back the police, and the police really, really, really don’t like it. The policy for no-knock warrants at LMPD now requires the chief of police to approve it before it goes to a judge. I’ll lay odds that cameras will be on more often. And I imagine that police oversight will change as a result of the deaths of Floyd and the others.

And that’s a good thing, for both the public and the police.


[1]While not trained on body cameras, I attended the Law Enforcement Mobile Video Institute (LEMVI) and was certified on mobile video cameras as an instructor. LEMVI was run by Jim Kuboviak, a former police officer who went to law school and who was the Brazos County Attorney for a long time.

[2]Identified as Officers Kate Crews and Allen Austin.

[3]See https://www.policeone.com/police-products/body-cameras/press-releases/louisville-metro-police-to-deploy-988-axon-body-worn-cameras-on-evidencecom-and-mediasolv-solution-OTLeauTnm4hHKPsA/