Category: Civil Rights

Sick and tired of being Sick and tired

The headline for this post is an old one. For many people, it won’t be familiar. But, if you study enough history, you know where it became famous. But before we do the reveal, let’s start with a simple story.
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Why #bluelives matter is the wrong phrase and the wrong cause (Part 1 of 4)

“I knew he had crossed the line to where I could have used deadly force, but I just felt that, you know, just because you can take a life, it doesn’t mean you should.”–  New Richmond, Ohio Police Officer Jesse Kidder

Recently, we have seen an uptick in the reporting of deaths and abuse by unarmed individuals, usually black men, at the hands of law enforcement officials or law enforcement wanna-bes. And the responses have become pretty routine. From some circles come the cries “We told you this was happening” followed by “No justice. No Peace”. Then from other circles come the cries of “He was asking for it”. Back and forth it goes. But, there is one series of responses that I find both fascinating and troubling. Silence. And it’s a silence not based upon lack of thought but based upon the premise that the life of a law enforcement officer is more valuable than the life of anyone else no matter what. And that is a recipe for disaster.

THE BACKGROUND

Before some start shouting that I am just “anti-cop” we need to remember a few facts. I come from a family that has cops in it, including those harmed while doing the job. I lived with a corrections officer for over a year. I was a prosecutor in two different states where I worked closely with law enforcement personnel and gained a reputation as being an aggressive prosecutor protective of law enforcement. I also was the primary attorney defending law enforcement personnel against accusations of violating the civil rights of citizens. I recall a childhood friend, Roy Wade, one of the nicest and most giving men you could ever hope to meet, becoming a Long Beach police officer and being shot and seriously injured very early in his career during a routine matter. So, I am very familiar with that world. This is not about being anti-cop. But it is about questioning how far being “pro-cop” should go.

THE MEASURE

With recent riots or uprisings or whichever phrase suits your palate, the same responses come back over and over. There are people condemning what they call the social failings of the inner city (code for black) communities. Of course, if these failings exist, they were there long before the riots, right? If there is a “disrespect for law and order” it was there long before the riots, right? And yet, these riots do not happen every day. In other words, the same ingredients and factors exist every day yet nothing happens. So what changes? The presence of “thugs”? Again, if those “thugs” and thugs (real thugs do exist. Including those who are often idolize and emulate the Sopranos and Sons of Anarchy), then why are there no daily riots, weekly, monthly or annual riots? What changed?

Someone unarmed is killed by a governmental operative under color of authority of law. That is what happened. These protests do not start when the police kill armed suspects. Almost everybody understands those killings.  It’s the unarmed ones that raise questions.

It’s the man shot when he made no threatening statements or movements and had his wallet in his hand.

It’s the mentally ill man whose crime was knocking on several doors and not complying with the officer’s commands. He wasn’t carrying a weapon. Considering he was naked, he was not carrying much of anything.

It is the guy who reached for an officer’s gun (never a wise move at all), did not get it, was tased and then shot by four officers. Again, he was unarmed at the time he was shot.

It’s the unarmed people shot in the back while running AWAY from the police.

It’s the guy shot for throwing rocks. For heaven’s sakes, the Israeli army faced that for years and showed greater restraint.

It’s the guy shot in the back while laying face down.

It’s the guy in his pajamas, shot while holding a spoon.

It’s the 12-year-old with toy gun who was shot immediately when the police arrived. No discussion, no warnings, just immediately shot and in direct contradiction to the officer’s accounting of what happened.

It’s the unarmed, handcuffed individuals who mysteriously are able to take guns and shoot themselves in the back of the head.

It is the man, shopping in an Ohio Wal-Mart, holding a BB gun he had picked up off a store shelf. Did I mention that Ohio is an “open carry” state? So, even if it had been a real gun, there was no crime or threat of a crime. Again, the police shot him immediately. Though, as you may have guessed, that is not what they wrote in their reports.

It’s the guy shot while running AWAY from the police.

It’s the person who dies while in police custody under questionable circumstances.

It’s the man shot by the cop who can’t tell the difference between his taser and his firearm.

And this happens and will happen over and over again because we believe that its more important for a police officer to come home no matter what than it is for someone else to come home alive. And when you have friends and family that are cops, it is an easy mindset to have. It’s an understandable mindset to have. But on a societal level it is a dangerous one. Because you have decided that even when an officer is wrong, it is ok. In the above examples, an officer could be right or could be wrong, but to many people it does not matter. All that matters is that the officer survived and protected “society”.

And that is not just a current trend. Historically, the poor, the disenfranchised, the non-white have always mattered less. In both law and tradition, those lives mattered less to society. Just another dead nigger. Just another dead spic. Or the popular NHI.

What’s “NHI”? It means “No humans involved” It’s a phrase oft used by police, judges, and yes prosecutors (full disclosure, I am quite sure I said it myself) in reference to a crime where both victim and suspect are less than desirable. Usually members of the underclass. Often junkies or homeless. You know, people, who still have a right to live to avail themselves of the justice system.

Historically, crimes against those people, especially when committed by the police, did not matter. They were swept under the rug. No fanfare, no investigations, just turning and burning. Few resources allocated. And that history is a long one. Certainly some places have responded better than others, but it still happens. Protests form designed to get the powers that be to care. To get them to act. And while the acts may not always end up in justice being served, the outcomes are always easier to accept when you feel that those in position of authority and society as a whole gave enough of a damn to take a second look.

WHERE BLM IS WRONG
So when somone points out that yes, the lives of people in their communities do matter we inevitably now get the postings on social media of “#bluelivesmatter” and the screaming of how police lives matter, as if this is somehow a new and radical thought. This would be understandable except for one glaring problem?

At what time in our history have we ever acted like police lives don’t matter? I sure can not think of one.

When an officer is so much as injured, other officers respond swiftly and often with brutal and sometimes deadly force. And very little if any investigation is ever given to those circumstances. Because we have held to the idea that if you hurt a cop, you deserve any retribution that comes next.

When an officer is killed on duty, even when the death itself is not exactly “heroic”, we praise the officer as a hero. One of our finest and a host of other platitudes. We offer a funeral with full honors, often attended by other officers from other departments in a sign of solidarity. If a suspect in the killing is at large they find the full extent of the law enforcement resources pointed right at them. And if a suspect is caught, no (legal) stone goes unturned in trying to convict the accused. In some cases, that effort has gone so far as to intentionally hide evidence from the defense in more than one documented case. This may lead some reading to say, “well there are always some bad apples” while ignoring that you can throw out bad apples. For decades, throwing out “bad” cops has been much harder to do.

There are statues and memorials to honor the fallen officers in almost every county in the nation. I distinctly recall the annual ceremony held in Shasta County in front of the courthouse honoring the dead. And though it was several years since the last Shasta Peace Officer was killed in the line of duty, seeing people you work with every day, knowing that any one of them could be snuffed out in a hairs’ breath is sobering and disconcerting. So, we understand the fear and concern for officer safety. (To my knowledge, the Fire Departments in Shasta County had no such ceremony. If so, it was not nearly as publicized or well attended).

And it is clear that we as a society think those lives matter. We have enhanced penalties for doing anything to an officer, one of the few professions accorded that protection. And while officers enter a profession they know is potentially dangerous not everyone who comes into contact with the police is making the same educated decision. In too many cases, they are dead before they can make any decision. So, when people hear of a police officer being killed and respond with that thin blue line, that is a normal moment of recognition. But, when they add “Blue lives matter” it is a co-opting of another movement and it tells those members of that community, “blue lives matter MORE”. One community argues that their lives are worth recognition, consideration and respect and we should not be so eager to accept that killing them means nothing. The other says they should never be questioned and no matter the circumstances their lives mean more. Does everyone who say that mean to give that impression? No. But, it is there and they don’t care that it is.

In this series, we will take a look at how we got here. How we created an environment in which we risked making the police unaccountable and in turn made the job even more dangerous. How we did it with law, tradition, training and the police subculture. We will see how apathy from members of the public who know darn well they are never going to be on the receiving end of police abuse and misconduct (and it is not because they always follow the law) , it festered. We will see how new technologies and social movements have changed the conversation and not always for the better. We will also contemplate where we go from here because we certainly need to go somewhere from here.

 

Back Again, and boy did we miss a lot.

Yes, it has been awhile. In our legal life, I have been hard at work on a series of cases that have required a great deal of travel and time. And it means we missed a lot. From police shooting unarmed civilians to Wrestlemania, to the end of Better Call Saul and the debut of Daredevil. There is a great deal going on out there and we will try to touch on a little of it here.

 

Better Call Saul.

From the creators of the award-winning BREAKING BAD, AMC has another prestige prize in BETTER CALL SAUL (“BCS”). The show is well written, well cast, well acted and a lot of fun. Prequels are always tricky business because you already know where several characters are going wind up. But, when done right, we can see a fascinating journey for both James “Slippin Jimmy” McGill (played by Bob Odenkirk, who may never known for comedy again after this) and Mike Ehrmantraut (Jonathan Banks, proving again he is pure gold). A journey that shows how the future Saul Goodman (Jimmy) was once a man who desperately wanted to be respectable and how his efforts failed and led him to the criminal he would become.

What I find as a solid plus to the show is how well it shows the legal profession. We see the large reputable law firm for which Jimmy’s brother, Chuck, is a name partner and leading rainmaker. We see the power and prestige of those larger firms and how they can, on occasion, show disdain for the little guy. But, it goes deeper. We learn how some of those big firm boys and girls actually come to like and respect Jimmy because of his intelligence and tenacity. When we meet him he is working from the back of nail salon. Admittedly, I actually live in a house and most small firm or solo lawyers I know do as well, but the idea of having to bust your hump to find the right way to become a quality player in the legal field really resonates.

Until THE PRACTICE, television shows about Law firms tended to show the glitz and the glamour. Rarely did they show the drudgery or even the fear of the law. Yes, this business can be scary, especially when you lack the pedigree of coming from the right schools, or right firms, or even the right families in some cases. BCS does that and more. Including Jimmy’s search for the right area of law in which to focus his practice, a problem many a lawyer has gone through.

DAREDEVIL

I confess, Daredevil is one of my favorite comic book heroes of all. Every year I re-read Frank Miller’s run on the book, especially the incredible BORN AGAIN saga. Because the Ben Affleck film was such a disappointment, I had high hopes for the new series on Netflix. And my hopes are met. It is a dark series and for the first half of the series, it is more of a great crime and action show than a super- hero show. The show draws heavily upon Marvel lore to establish each of the players and is pretty well grounded or as grounded as you can be with a protagonist who is blind but has enhanced senses and a radar sense.

As a legal show, while it shows the work of Franklin “Foggy Nelson and his blind partner, Matt Murdock, early in their careers, it does not spend a great deal of time going in-depth with the law. This is a shame because to see how the law is used or abused in the Marvel Cinematic Universe, of just how it functions can lead to a variety of intriguing storylines. We may see more of it as time goes on, since it Nelson and Murdock are the lawyers of record for many of the inhabitants of the Marvel Universe. Combined with the contradictions of Matt’s double life and his conflicted existence of lawyer by day and law breaking vigilante by night, I think there is room for a good legal show inside this series.

Police Shootings

Sorry, folks but this is going to take a whole new post to address. Since we were last here we have had the unique experience of watching a police officer actually get charged for murder. Again, were it not for the existence of citizen’s video this would have never happened. First, it involves police officers. Secondly, there is the racial component (white officer vs. dead black guy, cops account wins out) and, finally it was in South Carolina. These three factors historically lead to cursory investigations that always presume the killing is justified because the officer said so instead of looking at any evidence that may say otherwise. In this case, the video directly contradicts not only the officer who did the shooting, Michael Slager, but the second officer on the scene as well.

This is tragic on more levels than we can count because it comes right after three other high-high profile police related slayings of unarmed individuals and just before the Freddie Gray matter in Baltimore. These incidents do a great deal of harm because slowly but surely trust in law enforcement is getting eroded.  Police rely upon judicial and statutory rulings that encourage the use of deadly force first. These rulings reduce the chances that law enforcement will be given less lethal tools to do their jobs, including training in de-escalation. The history of officers willing to cover for each other or at least turn a blind eye to the wrongdoing of fellow officers is long and the backlash against those who say anything about police wrongdoing within those departments is also long. This mistrust then increases the danger to officers because at some point the public sees that badge, gun, and uniform and becomes automatically frightened. Or I should say some members of the public because it also painfully obvious that the police have a pretty good idea of who they can get away with abusing and who they can not.

Part of this tragedy is that there are many departments who have made concerted efforts to not be invading armies, but be protective members of the whole community. They are trained in cultural awareness in order to reduce misunderstandings. They have encouraged officers to move into the cities and neighborhoods they patrol. They have learned ways to de-escalate potentially dangerous situations while also remaining well versed in the use of physical or deadly force because, sadly, at some point any officer can be in the situation where there truly will be no choice but to use that force.

What we should be asking for, no, what we should be demanding is better training so that officers are not making these kinds of errors. We should give them tools to make better decisions. We should not have officers afraid of showing remorse and saying, “I thought it was him or me and I was wrong. I am sorry”. And yes, that might mean writing a big check, but ladies and gentlemen we are doing that anyway. Police departments across the nation pay big time for settling lawsuits because of either unlawful deaths caused by officers or other illegal actions. And the individual officers never pay a dime for that. The cities and counties do, and in turn, that money is taken from that law enforcement agency’s budget. So next time you hear police complaining that the department has no money, go look up how much money was paid settling lawsuits.

In short, these things are costing us all something. Life, liberty, money, or trust. We are all paying for this. Well, almost all. And if we do not get a handle on it, it is going to cost much more.

Resisting Arrest or Knowing the Law? Do Cops know the difference?

In recent months, we have seen an outpouring of emotions regarding the law enforcement community. Responses range from criticism regarding how they do their jobs when dealing with certain members of the community to a belief that they merit  unrestricted praise and obedience. In my life,  my own friends and colleagues cover this gamut. I understand the instant desire to label all cops as heroes just doing their jobs etc. But, how in the world do you justify this?

http://sfpublicdefender.org/news/2015/01/video-deputy-public-defender-unjustly-arrested/

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Just where the hell have we been?

Yes, it has been awhile. As those who subscribe to our newsletter know we have been rather busy lately with our move to the new office. Located at 300 E. State Street in downtown Redlands, CA. The move required some time away from the blog as we set up new services and added some new personnel. For more information on that you can sign up for our newsletter.

We also had some roller derby duties to perform because, well because we like it.

Receiving a whip from Bobby Cendejas and blocking out Kyle Bell
Receiving a whip from Bobby Cendejas and blocking out Kyle Bell

On to the law.

SEARCH AND SEIZURE DEBATE.

We want to thank the folks at Above the Law for bringing this to our attention. There was a debate regarding whether or not the mass collection of phone date is an unconstitutional search and seizure. It is a good question and one worth having because the real question is whether the records themselves are an unreasonable search and seizure. Unreasonable being the key word here. It is an intelligent debate and heaven knows we need more of that instead of the ridiculous talking head arguments we see on television and hear on the radio. Check out the video section there.

GAY MARRIAGE AND THE SUPREME COURT

The Supremes, once again, made no decision on gay marriage at all, thus allowing it in seven more states that overturned gay marriage bans. While it is certainly not a lot loss for the supporters of gay marriage it still is not the decisive Loving-esque decision they are hoping for. Eventually, the Supremes will have to face the key question in same-sex marriage. Can a state that does not allow same-sex marriage be forced to accept a lawful same-sex marriage in another state? Or, put another way, can people who are lawfully married in one state, have their marriage nullified once they move to another state? This full faith and credit question is the real crux of the matter. Once the Court rules on that, the game is over one way or another. For the best coverage on this and other Supreme Court matters, check out the SCOTUS BLOG.

THE LAW HAWK

I do not do YouTube advertising (yet). But if I did, I hope I have the guts to be as bold as this guy. He calls himself, The Texas Law Hawk. And I can not determine if this is the most ridiculous lawyer commercial I have ever seen or one of the coolest. I keep expecting him to challenge the prosecutor to a Texas Death Match, this Saturday Night at the Will Rogers Memorial Coliseum to face a Von Erich or Bruiser Brody.

In wrestling related news, we will be returning to New England in 2015 to do Color Commentary work for the Boston Pro Wrestling Marathon. Combined with our 15th law school reunion, I look forward to being back in the great Commonwealth of Massachusetts.

In our upcoming posts we have a special look at John Cena, and two book reviews. One of those reviews concerns a book written by New England wrestling mainstay Sean Gorman. Gorman is on vacation in Paris for the next few days and we wish the tall, lanky bastard well in the City of Lights.

Ferguson…and what you got wrong.

Frankly, this was a topic I had no real desire to jump into. First,because it was obviously going to devolve into all kinds of political rantings from people of all stripes and this is not a political blog. Secondly, because the amount of misinformation that would be tossed around before the “truth” was discovered was bound to be ridiculous. And on both counts, that is exactly what happened.

But, politics and law are usually bound together. Politics often leads to laws, good and bad. A failure to fully vet the legal ramifications of a hastily put together law often leads to long-term problems and extensive litigation. Living in California, the home of an asinine voter proposition system that bloats the state constitution, we see it first hand.

So what did you get wrong about Ferguson? In a nutshell, everything.

The biggest reason you got everything wrong is because of the rush to come to a conclusion on a matter that is not your job. The grand jury has a job, prosecuting agencies have a job, and unless you are in those categories you do not have one. You should not speculate on bullet trajectories, the number of shots fired, the relevance of an unconnected strong arm robbery, injuries, the lack of a police report, the eyewitnesses, the non-witnesses claiming to be closely associated with somebody else. Because the odds are very high that whatever the TV and talk radio news is giving you is wrong or out of context. Not because of some crazy left-wing bias or some crazy right wing bias, but because they are lazy in a highly competitive business. Reporting on nothing but speculation often. Let it play out a bit before you get started.

What you thought: This was clearly motivated by racism

Why you are wrong: Because nothing is clear. For the sake of this argument, let us say that Officer Wilson fired shots when he should not have. He is not the first cop to get into a physical altercation with a much larger person. But, those do not usually end in death. It is entirely possible that he merely is a bad patrol officer who screwed up badly. That he lacked the physical and mental skill to handle the incident in question. Maybe he was poorly trained. These are all possibilities. Keep this in mind: Almost every police department likes to say it has the greatest police officers in the nation. Except for one, they are all wrong. This may be just another example of someone doing their job poorly.

And a poorly done job may still be a legally done job. First, Missouri state law and then federal law will be applied to determine if any violations occurred in Ferguson. And no matter how it plays out, someone is bound to be unhappy. That does not mean it is right. Just makes it legal or illegal. That sucks of course, but if you are looking for fair, you may be in for a huge disappointment.

What you thought: Race has nothing to do with this.

Why you are wrong: Because you do not know that either. For starters, many people have this notion in their head that racism must consist of either cross-burning, racial insults, or some other blatantly obvious and recently socially unacceptable action. But, it is not limited to that at all. It is pervasive. So pervasive that we often have no idea of the impact it has on us. Study after study shows this.

From a legal standpoint, there is a reason why prosecutors can still find themselves in trouble for purposely seeking all white juries (Hint: Because some prosecutors want all white juries when they have black defendants). There is a reason why white defendants facing predominantly white juries often receive lesser included convictions on charges and evidence that their more colorful counterparts get the higher felonies on. Do most of these juries walk in saying, “Oh I’m gonna get that little “? Highly doubtful. But they are less likely to identify with a person of color than with someone white. That does not mean these people are going to go join the KKK. But it does mean they see a difference between those who look like them and those who do not. And that CAN have an impact.

Is an officer more likely to use a deadly force on a person of color than a white person under the same circumstances? Some are. Despite the praise heaped on them as heroes, they are human. They all have the same foibles as any other human and some of those foibles include a bias and prejudice, conscious and subconscious. The former is easy to find and to judge, the latter not so much. In other words, they can be everything we are and that covers every step on the scale of human conduct and emotion, from incredible heroism to incredible cowardice.

So we don’t know that race had no role in this. In fact, Officer Wilson may have no idea if it played a role or not. And we may never know. But, it can’t be rejected outright merely because people don’t want to consider it.

What you thought: All Cops are racist.

Why you are wrong: Just sheer numbers would indicate they can’t ALL be racist. All? in EVERY department across the nation? I can be cynical, but this takes quite a stretch.

The problem, of course, is that many are and they do not wear badges telling you the difference. Even scarier is that those who are not spend little time, if any, opposing those who do. In short, it is often accepted in the name of police solidarity. When I was prosecuting, I was often told to remember that the people we dealt with in the criminal justice system made up a very small part of the population. I would often think  that the number of people willing to do anything about crime was even smaller. But the group that is even smaller? The number of people in law enforcement willing to do something about the misconduct or prejudices of other officers.

To be fair, I worked with officers who had no problem telling me which officers they did not trust. I knew officers who told me about other officers whose work and ethics they questioned. But did they relay this to others? To their superiors? To the officer they did not trust? No. And until we get that with officers not fearing reprisals, that mistrust is going to be there.

What you thought: I know it is a fact because I heard it on Fox News….

Why you are wrong: If I need to fill this in for you, it may be a lost cause.

What you thought: I know it is a fact because I heard it on MSNBC…

Why you are wrong: Same answer as above.

What you thought: I know it is a fact because I heard it on CNN

Why you are wrong: Are they still in business? I jest, but in all seriousness, CNN’s habit of debunking other news stations’ unsubstantiated reports by using unconfirmed reports has gotten rather tiring. Biased media is bad enough. Lazy media is embarrassing.

So where does this leave us? Dead unarmed kid. That part has not changed. And there is nothing wrong with protests and demands for competent investigation. As my more “conservative” friends like to say, government needs a watchdog. Surely people have not forgotten that the police are part of the government’s powers have they? Some forget that because in their community the power of the police is rarely unleashed against them.

And there is nothing wrong with people wanting to support and believe in Officer Wilson, particularly his friends, family and fellow officers. After all, they have no direct knowledge of what happened either and it is not unreasonable to believe in your friend or family member until proven otherwise (and even then sometimes).Though the people sending him money with no connection to him at all is odd. And those adding racial insults and commentary while they make their donations is not exactly a ringing endorsement most of us would want. But, there are several people who see nothing wrong with those slurs. Besides, in the USA money is money and people often don’t care how they get it when their fat is in the fire.

What you may be thinking: You do not understand the hardships and danger of police work.

Why you are wrong: I worked closely with police officers for the better part of a decade. We have far more police officers in my family than we have lawyers. I lived with a cop. One of the most moving moments I had is attending the annual Shasta County memorial for fallen police officers, a sobering reminder that death often comes unexpectedly there.

Conversely, I also know what it means to forcibly have my hands on a car and be frisked for a jaywalking ticket. Let’s go over that again. I was frisked for a JAYWALKING ticket. Pulled over for an unspecified reason? Been there. Stopped for “matching the description” of “black male approximately 5’10 with a shaved head”, when at the time I had hair and have never been taller than 5’7 1/2? Been there too. Stopped after leaving a store when no alarms went off (and in one case I had no bags at all) and had no property? Been there too. And as Arsenio used to say, after awhile all these things make you go “hmmmm?”

So how will this all end ? I have no idea. There will be more protests and more counter protests. Maybe even a few hearings. And in the end, I suspect that nothing will actually change. I hope I am wrong, but I won’t bet on it.