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Experiences at the interface of life, law, and motherhood in Cali

SCOTUS Condones Use of Deadly Force in “Shoot First, Think Later” Case

Kudos to Washington Post for covering the story.

Facts: potentially belligerent driver/officers attempting to arrest the driver for a misdemeanor probation violation/driver threatens to shoot police who give chase/high speed chase ensues:

Officers set up spike strips to puncture driver’s tires. Officer suggested shooting at driver’s engine to end the chase. Superior told him NOT to shoot, wait and see what happened with strips. Officer fired 6 shots at the car, none of which hit the engine, 4 of which hit the driver and killed him.

The court ruled in support of the officer’s use of deadly force EIGHT to ONE.

Sotomayor with the sole dissent:

“Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour,” she wrote. “He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it.”

Her opinion stated that it was “clearly established” in prior decisions regarding excessive force that he acted improperly.

“Sotomayor noted that Mullenix’s words to his superior after the shooting were “How’s that for proactive?” It was an apparent reference to an earlier counseling session at which Mullenix was told he was not enterprising enough.

Mullenix’s “glib comment,” Sotomayor wrote, “seems to me revealing of the culture this court’s decision supports when it calls it reasonable — or even reasonably reasonable — to use deadly force for no discernible gain and over a supervisor’s express order to ‘stand by.’ ””

I can’t find the opinion, but here is the petition for cert.

First of all, however, eventhough we do not have the opinion to refer to, though I will do some more digging, the issues presented here, based on what I can glean from the sparse coverage, is not whether the officer is responsible (at all) as an agent of the state, but rather whether the victim’s family can sue the officer as an individual. In other words, the question presented seems to be whether the officer’s conduct can be said to go beyond that which other officers would reasonably do, thus removing him from the protections of sovereign immunity. That is the issue upon which the Court was ruling. It remains to be seen whether or not the officer as an agent of the police force, and therefore the state, remains liable to the family under whatever tort claim process is available in that jurisdiction.

That being said, what is most troubling about this case is how it seems to follow the trend we can observe in several recent opinions, in that it appears to utterly ignore prior SCOTUS precedent.

I mean Tennessee v. Garner, 471 U.S. 1 (1985) is one of the first cases any given law student reads during their introductory Criminal Procedure class.

Here is the holding of the case:

“This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless 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.”

In Garner, the officers shot and killed a fleeing young unarmed man who was suspected of committing a robbery. Thus, clearly, the facts of the case are not exactly analogous. However, it is important to note that in both cases, there was no determinative felony that had been committed. In fact, in Mullenix, the officers were attempting to arrest him for a misdemeanor probation violation, not even a felony, and presumably not a violent offense.

“[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Remember that requirement, reasonableness?

Thus, in order determine the constitutionality of a seizure,

“[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” The intrusion, in both cases being the use of deadly force.

In Garner, the Court stated:

[Following the balancing process, and] notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched.The suspect’s fundamental interest in his own life need not be elaborated upon.The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.

***

The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,  the presently available evidence does not support this thesis.

***

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.

It is not better that all felony suspects die than that they escape. [emphasis added].

This is the fundamental disconnect that is perceptible not only in the Court’s opinion, but also in popular opinion as well. The lives of the suspects are not deemed worthy of receiving full fledged constitutional protections. It’s amazing really.

The tired arguments of law enforcement’s challenges cannot hold muster in cases such as this one, where you literally have the superior officer telling the inferior officer not to shoot. This is not the case of an officer having only one potential choice to make, not having the opportunity to consult with more experienced officers, and then using excessive force in order to preserve his life or the life of another. This is not that case.

If we do not hold officers accountable for KILLING someone, even when their superior officer told them NOT to shoot, then when will we hold them accountable? We have already seen that chokeholding someone suspected of petty theft, or shooting at someone in a wheelchair, leading to the death of both are not blameworthy offenses. So just how far will officers have to go until the public can rest assured that the actions they commit while under color of uniform will actually lead to them being held responsible in a court of law?

I’ve heard over and over again that officers have to go with their intuition in these circumstances. But there is one fact that all these cases have in common: all of the victims are minorities, and are overwhelmingly black.

Have you heard of any cases recently where the police shot and killed a white teenager or adult accused of stealing some cigarettes, or similar petty offense? For a misdemeanor probation violation? I know I haven’t. Perhaps it has occurred, and just hasn’t been reported on?

But here’s the thing, yes complying with police might be less likely to lead to an altercation, but what if you are innocent? What if you have committed no crime? What if you are pulled over for a traffic stop, and then informed by an officer that he will “light you up” for refusing to put out your cigarette, when your initial offense was allegedly failing to use a turn signal? Do you deserve to lose your life for voicing a dissent? Of what import are the First, Fourth, Fifth, and Sixth, and Eighth Amendments if not to preserve your life and entitle you to a “fair” and “impartial” trial, in order to determine your innocence or guilt? Isn’t that the entire purpose of the Due Process clause and its purported protections?

It is a sad and pathetic state of the nation that no one other than white Americans can protest their unlawful arrest for fear of being killed. That is not justice, that is tyranny. And the blame does not lie solely with officers who act against their superiors’ orders, it lies with our “justice system” that continues to condone such behavior and protect officers who act out of turn.

This isn’t a matter of whether or not police officers are entitled to respect for putting their lives on the lines. Again, this is not a case of not having the time to reflect and choose carefully whether to use deadly force. This is a case whether the use was carefully considered, and the defendant officer was told not to pull the trigger–and he did anyway. He took the entire potential of a fair trial into his own hands, and executed the driver of that vehicle. “How’s that for proactive?” he said after the shots were fired.

The protections in Garner were meant to apply in cases just as this one. In fact, the Court stated in its opinion:

It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.

Of course, this is not a novel issue. The Court having ruled quite recently, and again 8 – 1 on the issue of the use of deadly force in a high speed car chase. What has evolved, however, is this study by three law professors, and published in the Harvard Law Review, regarding the role of jurors in evaluating the reasonableness of the use of excessive force– which may arguably be summarized thus:

The result in the case, we argue, might be defensible, but the Court’s reasoning was not. Its insistence that there was only one “reasonable” view of the facts itself reflected a form of bias – cognitive illiberalism – that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.

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Black Justice Matters

12063017_138484169836912_519062007_nIt is really no exaggeration to state that as a public interest minded lawyer, the opportunities for meaningful service are never ending. In fact, upon reading a letter authored by the new California State Bar President, I contacted his office on this matter. I’m sure the lure of the ACLU that initially brought me to law school in the first place has a little to do with that drive to help others through the law as well.

Recently, I have been listening to Hard Knock radio, on KPFA, which I highly recommend, and it tends to reinforce the message that we see played out across so many different political issues: the information we receive is highly controlled. I came across an image on Instagram recently that said something along the lines of, the two biggest myths Americans believe are 1) the government would never do anything like that to us; and 2) if they did, they would tell us about it on TV.

One of the things I love about social media, is that in addition to being able to connect with new people, and come across interesting accounts, there is often an opportunity for a share of information that goes beyond the typically “comfortable dialogue. For example, I was appalled when I heard about the following case:

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And yet, I am sure many black Americans are not shocked. They have seen this injustice play out time and again. I pulled the following info from a news article on the case:
Although killing a police dog would be a third-degree felony, it would not count as murder, and besides, 5-year-old Drake was no longer on the force, having recently retired from the PBSO K9 unit due to a burned-out nose from too much drug-sniffing. But DiMola gave an ultimatum anyway: Confess to the shooting and face an animal cruelty charge or don’t confess and face charges of shooting a cop, he told the teen. “Will I go into a program or something?” Ivins asked. “Probably. You’re a juvenile,” DiMola answered. “Will it affect my school work? Can I still go to a university?” Ivins countered.DiMola said confessing wouldn’t impact Ivins future plans. “Ivins, help me to help you, because as soon as we part, I won’t be able to help you,” DiMola said. “I see a little guy in front of me. I see a 16-year-old boy who just told me he wants to go to college, that he wants to make something of himself, and I never hear ‘college’ out of kids. You’re in 11th grade. You know, it sounds like you want to have a future.” Should a Juvenile Serve 23 Years for Shooting a Retired Police Dog?
Ivins eventually mumbled that he shot Drake “two or three times” in the master bedroom but denied shooting the first bullets through the sliding glass door — and he wouldn’t say who did.Yet there would be no leniency for Ivins. Local news would plaster his name and face next to images of a bandaged-up dog. Infuriated dog lovers would seek revenge for the death of Drake. Their calls would be heard by prosecutors, who would utilize a one-two punch of Florida laws to charge Ivins as an adult, resulting in an extraordinarily long sentence for a teenager.It’s two years longer than the average time served in Florida for murder.Florida’s “direct file” law gives prosecutors — not judges — the power to decide whether teenagers are charged as juveniles rather than adults. The measure has long been decried by defense attorneys and juvenile advocates and was spotlighted by human rights activists in a report last year. Direct file, critics say, denies the youngest citizens access to a system that was designed precisely to address their age and immaturity.

Prosecutors called Ivins a “career criminal” and chose to charge him as an adult — a decision the state attorney defends to this day. Then, because of Florida’s mandatory minimum sentencing laws, he faced a minimum of 20 years because his crime involved a gun. So instead of being sentenced to a three-year juvenile program based on rehabilitation or receiving a “youthful offender” sentence of six years — likely outcomes had he been granted leniency due to his age — Ivins got slammed with a 23-year sentence in state prison for killing a dog. That’s seven years longer than he had been alive. It’s two years longer than the average time served in Florida for murder.

hange.org petition urged Drake supporters to bombard Palm Beach County State Attorney Dave Aronberg with letters, emails, and phone calls. The 9,000 people who signed it asked the young, Harvard-educated prosecutor to punish Ivins to the fullest extent of the law. “ABSOLUTELY NO PLEA DEALS ON THIS CHARGE,” wrote Billie Young from New Smyrna, Florida. “There was NO REASON for the KILLER to have shot an innocent dog, especially a K-9 that is trained as an enforcer of the law.” Vicky Frederick from Canada had a less sympathetic take. “JUST KILL HIM!” she wrote.

His mother points out the “affluenza” story of white 16-year-old Texas teen Ethan Couch, who was given ten years’ probation and no prison time for killing four people in a drunk-driving case from February 2014. She also points out the story of 13-year-old Nathaniel Brazill, who in 2000 murdered his teacher and was sentenced to 28 years in prison. http://www.browardpalmbeach.com/news/should-a-juvenile-serve-23-years-for-shooting-a-retired-police-dog-6465166

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In response, one of my lawyer friends turned my attention to another case, perhaps even more deprave? If that is possible.

Kalief Browder (http://solitarywatch.com/2015/06/29/kalief-browders-life-and-death-galvanize-action-to-end-solitary-confinement/)

Browder’s story, in which he was held on Rikers Island for three years beginning at the age of 16, spent an accumulated two of those years in solitary confinement, and was ultimately released without a trial or charges,

Kalief shortly thereafter committed suicide.

In his book Just Mercy, which is ironically being offered for sale in select Starbuck’s locations, Bryan Stephenson proffers that the opposite of being poor is not wealth, but rather justice. Further, he states that by the rate at which individuals are being sentenced and incarcerated, “one in every three black male babies born in this century is expected to be incarcerated.”

But not all hope is lost.

I became more attuned to what was going on with the black lives movement following Ferguson. I had happened to just be getting more involved with Twitter, and of course we saw how it played out as an effective means of communicating the injustices as they were happening. It’s not that I wasn’t paying attention before, it’s more that I was too naive to think that the stories that were even garnering coverage could actually be true. I’m not sure if it’s more white privilege, lawyerly skepticism, or good ole American ignorance. I mean I could not believe South Carolina was still flying the Confederate flag when that became a regular news story. And that they had to have a vote! Apparently, others agreed it should be taken down sooner, rather than later.

Hearing the interview of a lawyer of this fine organization on Hard Knock radio was truly inspiring.

There is much work to be done. It’s time to put the activate into activist. Step one is acknowledging that something is very very wrong.

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California’s Unborn Children At Risk: CA Joins NY in Not Enforcing the Law

Go Mercury Free, an organization founded byEric Gladen and supported by Robert F. Kennedy Jr., today submitted a letter to all of California’s legislators asking them to reverse the mercury exemption granted by California Health Secretary Diana Dooley and “simply enforce the law.”

Dooley exempted California’s mercury law because of what she is reporting is a “shortage” of mercury-free flu vaccines used in pregnant women and infants.  However, her report is a direct contradiction to what the company that makes and distributes the mercury-free vaccine (Sanofi Pasteur) is reporting.  Just today, SP confirmed that the shortage “does not exist,”  that there has been a slight “delay in shipment,” but that there is “no shortage” and concerned Californians should contact the California Department of Public Health if they have any questions.

Read the rest of this entry »

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Of the Proficience and Advancement of Learning Divine and Humane, First Book, Francis Bacon3.

3. And for matter of policy and government, that learning should rather hurt, than enable thereunto, is a thing very improbable: we see it is accounted an error to commit a natural body to empiric physicians, which commonly have a few pleasing receipts whereupon they are confident and adventurous, but know neither the cause of the diseases, nor the complexions of patients, nor peril of accidents, nor the true method of cures: we see it is like error to rely upon advocates or lawyers, which are only men of practice and not grounded in their books, who are many times easily surprised when matter falleth out besides their experience, to the prejudice of the causes they handle: so by like reason it cannot be but a matter of doubtful consequence if states be managed by empiric statesmen, not well mingled with men grounded in learning. [/]

But contrariwise, it is almost without instance contradictory that ever any government was disastrous that was in the hands of learned governors. For howsoever it hath been ordinary with politique men to extenuate and disable learned men by the names of pedantes; yet in the records of time it appeareth in many particulars that the government of princes in minority (notwithstanding the infinite disadvantage in that kind of state) have nevertheless excelled the government of princes of mature age, even for that reason which they seek to traduce, which is, that by that occasion the state hath been in the hands of pedantes: for so was the state of Rome for the first five years, which are so much magnified during the minority of Nero, in the hands of Seneca a pedanti: so it was again for ten years’ space or more, during the minority of Gordianus the younger, with great applause and contentation in the hands of Misitheus a pedanti: so was it before that, in the minority of Alexander Severus, in like happiness, in hands not much unlike, by reason of the rule of the women, who were aided by the teachers and preceptors.[/]

Nay, let a man look into the government of the bishops of Rome, as by name, into the government of Pius Quintus and Sextus Quintus in our times, who were both at their entrance esteemed but as pedantical friars, and he shall find that such popes do greater things, and proceed upon truer principles of estate, than those which have ascended to the papacy from an education and breeding in affairs of estate and courts of princes; for although men bred in learning are perhaps to seek in points of convenience and accommodating for the present, which the Italians call ragioni di stato, whereof the same Quintus could not hear spoken with patience, terming them inventories against religion and the moral virtues; yet on the other side to recompense that, they are perfect in those same plain grounds of religion, justice, honour, and moral virtue, which if they be well and watchfully pursued, there will be seldom use of those other, no more than of physic in a sound or well dieted body.[/]

Neither can the experience of one man’s life furnish examples and precedents for the events of one man’s life. For as it happeneth sometimes that the grandchild, or other descendant, resembleth the ancestor more than the son; so many times occurrences of present times may sort better with ancient examples than with those of the later or immediate times: and lastly, the wit of one man can no more countervail learning than one man’s means can hold way with a common purse.

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