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Tag: police shootings

Neil Gorsuch’s Participation In Supreme Court Could Make a Difference, Most Likely In favor of Protecting Officers

Judge Neil Gorsuch

Judge Neil Gorsuch

By Ross Parker
ticklethewire.com

The muddied area of the law in civil actions against police officers involved in a shooting is one where Justice Neil Gorsuch’s participation and vote could make a difference, most likely in favor of protecting the officers. The Supreme Court heard argument last week in County of Los Angeles v. Mendez, a Section 1983 action against the county and two LA Sheriff’s Deputies.

It is an old legal adage that bad facts make bad law. From a law enforcement perspective, the case presents that kind of context.

First the present atmosphere surrounding police shootings, particularly of minority members, particularly where a rule or policy violation is present,  is very unforgiving of split second decisions by police officers in the heat of situations reasonably perceived to be dangerous.  See The War on Cops by Heather Mac Donald. One publication has described the case as involving the question if the police can “troll you and then shoot you.”

Second the atmosphere was especially stacked where the victim was, after the fact, found to be an innocent who suffered serious injuries.

The deputies were seeking a parole violator in 2010 when they knocked and announced their identity at a house in Los Angeles and then entered and searched it. In violation of the 4th Amendment, they lacked either an arrest or search warrant. Finding no one, two of them were sent to check a dilapidated shack in the backyard behind the house. Without announcing their identity or purpose, they opened the door with guns drawn. Not knowing who they were, Mendez picked up a BB gun he used to kill rats but did not point it at the officers. The deputies opened fire with 15 shots wounding Mendez and his pregnant girlfriend. Mendez later had to have his leg amputated because of his injuries.

The “Provocation” Rule

At the conclusion of the federal bench trial, the judge sustained liability and awarded the plantiffs $4 million in damages. The 9th Circuit Court of Appeals upheld the judgment under the alternative theories that the officers had provoked the threatening situation and that their constitutional violation, under the circumstances, was the proximate cause of the excessive force causing the injuries.

The “provocation” rule is opposed by law enforcement because it ignores principles of qualified immunity and focuses on events prior to the reasonableness of the officers’ action at the time of the shooting. Such a rule would, they argue, encourage police to hesitate and thus result in increased danger to both them and the subjects. The legal analysis has been widely discredited by other appellate courts.

Plaintiffs argue that it is unfair to shield officers from liability for unreasonably dangerous situations which they created or contributed to by their own actions.

The wide gap in views on what legal principles and analysis should be employed by the parties and lower courts was reflected by the apparent attitudes by the 8 Justices during oral argument last week. Even the fundamentals of the law in this area are confusingly uncertain.

The case could very well end up in a 4-4 tie between the Justices who support a finding that an unconstitutional entry satisfied proximate cause for the injury (likely Kagan, Sotomayor, Breyer, and Ginsburg)  and those who could discern no proximate cause between any constitutional violation and the result (likely Roberts, Alito, Thomas and Kennedy). A tie would uphold the 9th Circuit’s affirmance of liability and damages. Of course predicting individual votes in a murky area of the law is a perilous course taken only by the most stalwart of columnists (who have nothing to lose).

Ominously the 13 Amicus Curiae briefs are split almost equally divided in their support of the two sides of the case.

Almost Justice Gorsuch’s disciplined and conservative approach could bring clarity in this area. Of course it is likely to be a clarity very unhelpful to the victims of police shootings.

News-Journal: Justice Department Finally Collects More Data on Police Shootings

police lightsBy Editorial Board
Daytona Beach News-Journal

Missing from the national debate on police officer-involved shootings, such as when deadly force is justified and how often race plays a role, is one key component: actual data.

It’s been one of the most confounding revelations since civil unrest over a police shooting erupted in Ferguson, Missouri, in summer 2014: No one knows exactly how many people are shot by law enforcement each year, and what the circumstances are in each instance. The federal government doesn’t have the numbers, and neither do most states — including Florida, a deficiency exposed by the Daytona Beach News-Journal last year in “Shots Fired,” its special investigation of civilians being shot by state and local law-enforcement officers.

Since Ferguson, and since “Shots Fired,” more highly publicized officer-involved shootings around the nation have sparked organized protests to draw attention to the issue. What’s needed in the emotional discussion are some cold, hard facts.

Thankfully, the Justice Department recently announced it would start collecting nationwide data early next year on police shootings and other violent encounters with the public. It’s a long-overdue move to establish what should have been a fundamental responsibility of law enforcement from the outset.

Indeed, the Washington Post got the jump on the government last year by compiling its own national database of police shootings, a gap that FBI Director James Comey said was “embarrassing.”

“We can’t have an informed discussion because we don’t have data,” Comey told the House Judiciary Committee last October.

To read more click here. 

FBI to Create a National Database on Use of Force by Law Enforcement

police lightsBy Steve Neavling
ticklethewire.com

The FBI tracks records on plenty of crimes, but it has not collected statistics on the number of times police use force when interacting with the public.

That is about to change under a pilot program early next year that will compile statistics and establish the first online database on fatal and nonfatal use-of-force among law enforcement, the Washington Post reports. 

“Accurate and comprehensive data on the use of force by law enforcement is essential to an informed and productive discussion about community-police relations,” said Attorney General Loretta Lynch in a statement Thursday. “The initiatives we are announcing today are vital efforts toward increasing transparency and building trust between law enforcement and the communities we serve.”

But there’s one flaw: The Justice Department is barred from requiring state and local law enforcement to report nonfatal interactions with the public.

The pilot program comes amid high-profile police shootings of black people.

FBI Director James Comey said it’s “unacceptable” and “ridiculous” that there isn’t comprehensive data on law enforcement’s use of force.

Other Stories of Interest

The Supreme Court, Police Shootings and Black Lives Matter

By Ross Parker
ticklethewire.com

Have the frenzied media coverage of incidents involving police shootings of African Americans and the protests of Black Lives Matter activists affected the Supreme Court?  The Court has not addressed a case involving race and the criminal justice system in some time, but two such cases are scheduled for oral argument this month.

Coincidence or a legitimate attempt to weigh in on a crisis jeopardizing law enforcement lives and the faith of minority Americans in the fairness of the criminal process?

US_Supreme_Court

The Court exercises discretion in at least three ways: what cases to accept for hearing (only about 1% are heard), the timing of oral argument (these cases were set for the first month of the 2016-2017 term), and in the individual votes and opinions of the Justices). The first two seem to demonstrate a special sensitivity to this subject which is embroiling race relations in America.

However, the other related question is whether the open seat on the Court from the death of Justice Scalia will affect the Court’s ability to decide these cases and to resolve conflicts in the lower courts. A 4-4 vote will mean that the lower court decision will stand. In these two cases the lower courts both rejected the petitions of minority defendants on racial issues.

The first of the two cases is Buck v. Davis, a death penalty appeal which has bounced around the Texas state courts, the federal district court in Houston and the 5th Circuit since Buck’s sentence of death in 1996. Buck was convicted of capital murder of his ex-girlfriend and a man at her house in a jealousy-fueled shooting spree. During the penalty hearing his defense attorney, who had a notoriously bad record in capital cases, called a psychologist to testify on the subject of Buck’s likelihood of posing a danger in the future.

In Texas the jury must unanimously conclude that the defendant poses a danger of violence to warrant the verdict of death. The defense psychologist testified that the fact that he was Black made him statistically more likely to be dangerous. Ultimately, however, the psychologist was of the opinion that he was at a lower probability of being dangerous. His report, which included the race analysis, was admitted as a defense exhibit. The prosecutor reiterated this race opinion in cross-examination and the witness’s conclusion in his closing argument.

On the most recent appeal, the 5th Circuit concluded that, although racial appeals had long been unconstitutional in criminal trials, the defendant had not met the standard of a substantial showing of prejudice to justify a Certificate of Appeal. There had been no proof that the result would have been different without the expert’s testimony in view of the defendant’s callous actions and his lack of remorse. The defense showing on appeal was not extraordinary and the prejudice de minimis.

This particular psychologist had repeated this race-based statistical opinion in six other capital cases, and the Texas Attorney General announced in a press conference that it would not oppose re-sentencing in all of those cases. However, a new Attorney General reneged on this promise as to Buck’s case.

In addition to the race-based issue, the case illustrates the tension in capital cases between two important principles. In cases involving the death penalty errors in the trial are painstakingly reviewed and appellate opinions often reach to achieve due process. On the other hand, there is a need for finality in the resolution of criminal cases. The length of time capital defendants sit on death row today is considered by some to be a failure of finality in the system.

Read more »

Chicago Tribune: Time Has Come for Justice Department to Investigate Chicago PD

Chicago Mayor Rahm Emanuel.

Chicago Mayor Rahm Emanuel.

Chicago Tribune
Editorial Board

The appointment of a blue-ribbon task force to probe the Chicago Police Department is a laudable move by Mayor Rahm Emanuel. It became an unavoidable step amid mounting pressure a week after the city was forced to release the video depicting the alleged execution of Laquan McDonald, a troubled black 17-year-old shot 16 times by a white Chicago police officer in October 2014.

Former Massachusetts Gov. Deval Patrick, a former head of the Justice Department‘s Civil Rights Division, will serve as an adviser to the newly formed police accountability panel. But why turn to a former head of the Civil Rights Division? What is needed is a full-scale Justice Department “pattern-and-practice” investigation of civil rights abuses within the Chicago Police Department — the type of sweeping, outside investigation that Chicago, seemingly alone among large American cities, has mysteriously evaded over the last several decades.

From Newark to New York, Cleveland, Miami, New Orleans, Albuquerque and Los Angeles, the Justice Department’s Civil Rights Division, which exercises sole authority to launch and conduct such inquiries, has scoured dozens of large police departments, leaving Chicago’s omission head-scratching.

The Justice Department may act if it finds a pattern or practice by a local law enforcement agency that systemically violates people’s rights. These investigations have resulted in settlements and court orders requiring increased transparency and data collection, steps to prevent discriminatory policing, independent oversight, improved investigation and review of uses of force, and more effective training and supervision of officers — all measures that the Chicago Police Department urgently needs.

Why now? In the last 10 years, Chicago has paid an astounding sum, more than $500 million, to settle police misconduct cases, including $5 million to the mother of Laquan McDonald before a lawsuit was even filed. These settlements include, but are not by any means exclusive to, the reign of terror under a white police detective and commander, Jon Burge, and his midnight crew who tortured dozens, possibly hundreds, of African-American suspects in the 1970s and 1980s.

Official Record of Police Shootings Has Major Omissions, Including Eric Garner, Tamir Rice

Eric Garner with his children, via National Action Network

Eric Garner with his children, via National Action Network

By Steve Neavling
ticklethewire.com

Their killings prompted nationwide protests about the use of force by police but their names are missing from a federal government’s official database of homicides by officers, the Guardian reports. 

The absence of Eric Garner, Tamir Rice and John Crawford’s names raises new questions about the government’s official record of police shootings.

FBI spokesman Stephen Fischer said the database is voluntary for police departments.

“We have no way of knowing how many incidents may have been omitted,” Fischer told the Guardian in an email.

A review by the Guardian found many flaws and omissions.

“It’s just another part of the cover-up and erasing of his murder from the record,” said Eric Garner’s daughter, Erica Garner.

Bill Would Require Every Police Killing to Be Tallied by Justice Department

By Steve Neavling
ticklethewire.com 

Without a federal requirement to disclose police killings, it’s impossible to know how many cops kill civilians in any given year.

That could change under new legislation that would require all police departments to report law-enforcement killing to the Justice Department, Essence reports.

Currently the FBI keeps a tally on the number of police killings, but local departments aren’t required to produce the information. A Wall Street Journal analysis found that the FBI’s tally of law-enforcement killings between 2007 and 2012 was missing 550 deaths.

“What we know is that some places have chosen not to report these, for whatever reason,” Cooper told the Journal.

Under the new legislation, introduced by Rep. Steve Cohen, D-TN, all police agencies would be required to disclose every death during police custody.

“Before we can truly address the problem of excessive force used by law enforcement, we have to understand the nature of the problem, and that begins with accurate data,” Rep. Cohen said in a statement.

Called the “National Statistics on Deadly Force Transparency Act of 2014,’ the bill likely will have to be reintroduced in January.