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Archive for January 26th, 2017

Supreme Court Strengthens Qualified Immunity for Law Enforcement Officers’ Use of Deadly Force

By Ross Parker
ticklethewire.com

It was a tough year for law enforcement officers. Line of duty deaths, especially intentional killings of police, were up dramatically. Several categories of violent crime, including homicides, rose significantly after two decades of steady decline in crime statistics. Recruitment of new officers is becoming difficult, and officers confronting deadly situations are justifiably wary about the public (and media) second-guessing life or death decisions that had to be made under pressure within seconds.

Heather MacDonald, in her recent book The War On Cops, blames these developments on an anti-law enforcement movement led by groups like Black Lives Matter, accentuated by media attention, and facilitated by the policies of the Obama Administration. Whether you buy all of her conclusions, she does make a persuasive case that the current atmosphere in some segments of the public about law enforcement has resulted in officers being less aggressive in discretionary policing and that is a factor in a new crime wave, especially in the nation’s cities.

Into this troubling and dangerous situation, a potential boost in law enforcement confidence came this month from an unlikely source, a per curiam opinion by the U.S. Supreme Court.

Per curiam (Latin: by the Court) decisions are judgments by appellate courts as a whole in which no particular judge or Justice is identified as the author. In the Supreme Court per curiam opinions are almost always unanimous and usually represent brief rulings on non-controversial subjects. They tend to be short. They seldom set an important precedent or alter the rule of law.

But there are exceptions. In 1972 the per curiam opinion by the Court in Furman v. Georgia turned capital punishment upside down when it struck down every death penalty law and practice in the country as arbitrary and capricious under the 8th Amendment. It took four years for the states to re-institute death penalty statutes and, in many ways, the case began to diminish the role of the supreme penalty which continues to this day.

Bush v. Gore

In Bush v. Gore (2000) the Court issued a per curiam opinion in one of the most controversial cases in the Court’s history. The Court upheld the razor-thin Florida vote which gave the presidency to George Bush by a single electoral vote over Al Gore. The 5-4 vote followed party lines with the Republican appointed Justices in the majority, but the ruling was brief and unauthored.  Harvard Professor Alan Dershowitz called it the “single most corrupt decision in Supreme Court history,” but others thought it was a profile in courage which preserved the republic.

new_mexico_state_police

Earlier this month the Court decided another per curiam opinion which has gotten much less attention but which could have profound implications, especially to law enforcement officers on the front line. White v. Pauly was an appeal from a civil ruling by a federal district court against New Mexico State Police Officer Ray White, who had shot and killed Samuel Pauley in a police confrontation outside of Santa Fe.

Witnesses had called 911 to report Pauley as a drunk driver. Two police officers went to his residence where he lived with his brother Daniel Pauly in a secluded area to talk with Pauly. They ordered him to open the door.  It was asserted in the complaint that the brothers had not heard the officers identify themselves. The Paulys got their firearms.

A few minutes after the initial confrontation, Officer White arrived at the scene outside of the Pauly residence. The Paulys yelled that they had guns and Daniel fired two shotgun blasts outside the back door. Samuel stuck his handgun outside a window in the front of the house and pointed it in the officers’ direction. All three of the officers took cover, White behind a stone wall. One of the initial two officers fired his gun at Pauly and missed. Officer White fired and killed Samuel Pauly.

In the civil suit the three officers asserted qualified immunity, But the plaintiffs responded that the defense was not available since court opinions in other circumstances had stated that a warning was required before the use of deadly force even under the threat of serious harm. Officer White could not reasonably assume that this warning had taken place before his arrival. The district court agreed and the 10th Circuit Court of Appeals affirmed the ruling and ordered the case to go to trial. Officer White appealed to the Supreme Court.

The Court unanimously vacated this decision without oral argument in a brief per curiam opinion. Officer White had violated no clearly established law requiring a police officer facing an occupant pointing a firearm at him to identify himself and shout a warning before firing his weapon.

The Court pointed out that qualified immunity for law enforcement officers is important to society as a whole. Pre-existing law must give them fair and clear notice of impermissible conduct in order to invalidate the assertion of qualified immunity. Officer White’s conduct under the circumstances, especially his late arrival after the other officers had engaged the subjects, did not violate clearly established law. He could reasonably conclude in an ongoing police action that proper procedures had already been followed.

The case has been criticized as giving police a “license to kill.” But Supreme Court Justices are aware of the issues of the day. They watch TV. Maybe they are sending a signal that the courts should not second-guess law enforcement officers who have to make split second decisions on the use of deadly force by weakening qualified immunity.

Or perhaps they are just tired of the judiciary being asked to make social policy on confrontations between police and potentially dangerous subjects in the context of law suits against police.

Or maybe, like most garden variety per curiam opinions, the case represents a narrow ruling on a unique set of facts with little or no policy-making implications.

Pittsburgh Post-Gazette: FBI Went too Far Running a Child Porn Site

hacking By Editorial Board
Pittsburgh Post-Gazette

The FBI is supposed to protect children from predators, not use them as pawns in a pornography sting. That is what happened, however, and now the agency is under fire from civil rights groups, defense attorneys and even some scholars and federal judges. Not for the first time — remember when agents impersonated a journalist in pursuit of a teenager who was making bomb threats to a school? — the FBI has demonstrated embarrassingly poor judgment in an internet-based investigation.

For two weeks in 2015, after seizing control of a child porn website, the FBI not only allowed the site to remain operational but operated it, becoming what The Seattle Times called “one of the largest purveyors of child pornography on the internet.” The goal of Operation Pacifier was to identify those who used the site and file charges against them. By the time the FBI pulled the plug, it had the goods on nearly 190 people, thanks to special technology it used to hack into users’ computers.

When is distribution of child porn not a crime? According to the FBI, when it’s the one doing the distributing. Its operation of the site allowed visitors to access pornographic images, further exploiting the victims. It’s even been accused of improving the site’s functionality, making it friendlier for porn-seekers to use during the sting.

To read more click here. 

Veterans of Secret Service Admonish Agent Who Won’t Take Bullet for President Trump

secret serviceBy Steve Neavling
ticklethewire.com

Veterans of the Secret Service said they were stunned to learn an agent based in Denver said she would not take a bullet for President Trump.

Gary Byrne, who protected President Clinton and the Oval Office, told Fox News that he was astonished by Special Agent Kerry O’Grady’s statements on Facebook. 

“It is unheard of and unbelievable that someone at her level would comment publicly on being unwilling to protect the president,” said Byrne, author of “Crisis of Character.” “Everyone has their own personal political opinions, but this job is not personal. You take an oath to the country, not the person. You are protecting the office, and what makes the country great.”

Retired Secret Service Agent Dan Emmett, author of “Within Arms Length” and “I Am a Secret Service Agent,” also admonished O’Grady.

“Her stated refusal or unwillingness to do what all Secret Service agents have been willing and expected to do since 1902 when the Secret Service began protecting presidents presents the worst possible example for her agents as well as all young agents Service wide. She has at this point rendered herself completely irrelevant as an agent. Few will be willing to work for her or with her.”

The Secret Service pledged to take “appropriate action” after her Facebook post came to the agency’s attention.

President Trump Moves to Build Wall, Beef Up Enforcement, End Sanctuary Cities

Donald Trump

Donald Trump

By Steve Neavling
ticklethewire.com

President Trump is delivering on his pledge to protect the border from undocumented immigrants.

On Wednesday, Trump called for tripling the size of ICE and hiring of 5,000 border officers, the New York Post reports. 

Trump also signed an executive order to build a border wall with Mexico another to penalize sanctuary cities.

“A nation without borders is not a nation,” the president declared. “We are going to restore the rule of law in the United States. Beginning today, the United States of America gets back control of its borders.”

Trump said sanctuary cities, such as New York, have “caused immeasurable harm to the American people and to the very fabric of our Republic.”

Trump again spoke of the importance of a wall.

“As I’ve said repeatedly, we’re going to get the bad ones out, the criminals and the drug dealers and the gangs and gang members and cartel leaders,” the president said.

“The day is over when they can stay in our country and wreak havoc. We are going to get them out, and we are going to get them out fast.”

Watch President Trump Deliver Speech at Homeland Security

By Steve Neavling
ticklethewire.com

President Trump spoke to Homeland Security on Wednesday afternoon about his plan to build a wall and increase enforcement on the ground.

Trump May Bring Back Secret CIA ‘Black Site’ Prisons

torture photo By Steve Neavling
ticklethewire.com

President Trump may bring back so-called CIA “black site” prisons where terrorism suspects are held and were once tortured.

President George W. Bush used the black sites to combat the “war on terrorism” following the Sept. 11, 2001, attacks, but former President Barack Obama closed them.

In the next few days, Trump is expected to sign an executive executive order to call for a high-level review into “whether to reinitiate a program of interrogation of high-value alien terrorists to be operated outside the United States” and if the CIA should run the facilities, Reuters reports. 

The information comes from a copy of a draft published by the Washington Post.

But Trump spokesman Sean Spicer said the document did not come from the White House.

House Speaker Paul Ryan agreed.

“My understanding is this was written by somebody who worked on the transition before who’s not in the Trump administration. This is not a product of the administration,” Ryan said in an interview with MSNBC.

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