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?
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.
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.
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.