When there’s a cop, there’s a way

One of the first reality checks I had when I was in law school was the creeping awareness that despite what we’ve all been raised to believe and wish for, police officers are human beings and being human beings, are prone to lying, fabrication and violent acts of thuggery. One need only spend a few hours on the internet and eventually you’ll come across a video of some cop tasing some bro or sucker-punching a female protester. Radley Balko at The Agitator has been chronicling the abuses by police forces across American and our slow slide down into full police-state status. Others have been equally diligent in keeping tabs: the site Injustice Everywhere; Carlos Miller and several of my fellow legal bloggers as well.

The general consensus seems to be that permitting citizens to videotape police activity is beneficial: after all, the event is recorded live and is plain for everyone to see and draw their own conclusions. One would think. But the coddling of police officers and the failure to hold them accountable for their illegal actions can find a way even when faced with incontrovertible evidence to the contrary.

Meet Lorenzo Osbourne [PDF]. Osbourne was hanging out in front of a church with another man when police rolled up because of a burglary call. Having determined that the call was false, they went on their way to other important business decided to investigate the two men because it was a high crime area and they seemed suspicious for walking away from the officers:

To that end, they stopped their cruiser approximately ten to twenty feet in front of the men and got out to approach them. When this occurred, the defendant and the other man immediately began to  flee, prompting Vasquez to grab the defendant, who physically resisted and threw punches at him, and Larregui to detain the other man, who struggled with him  until he drew his Taser gun and threatened to use it if the man continued to resist. When the Taser gun was turned on, its camera began to record the encounter as it unfolded. Officer Damien Csech, another uniformed Bridgeport police officer, then arrived at the scene and  took control of the man with whom Larregui had been  struggling, freeing Larregui to assist Vasquez in his efforts to subdue the defendant.

Soon, all three officers turned their attention (and tasers) to Osbourne. Vasquez put him in a choke hold and repeatedly ordered him to get down on the ground.

Although Vasquez succeeded in getting the defendant down onto his hands and knees, the defendant continued to struggle with him and to defy his repeated orders to lie down on the ground. In the course of such continuing resistance, while both Vasquez and Csech were attempting to restrain the defendant physically, Larregui tased the defendant in the back, causing him to holler out in pain.

After the first five second tasing cycle, when the defendant continued to struggle with Vasquez, Larregui tased him again. Immediately after that second cycle ended, the defendant quickly reached down to his right shorts pocket, from which he grabbed and partially removed a gun. Upon spotting the gun, which he first became aware of at that point, Vasquez immediately stepped in between the defendant’s right side and right  arm, preventing the defendant from reaching downward  again. Moments later, Larregui tased the defendant a third time.

Now here’s the fun part:

Notwithstanding Vasquez’ position between the defendant’s right side and right arm from the time the gun first appeared until the initiation of the third tasing cycle, the officers testified that the defendant held the  gun in his right hand during this third cycle until it fell to  the ground and discharged. After the gun fell, Larregui testified that he kicked it out of the defendant’s reach.  Thereafter, as the defendant continued to struggle, Larregui tased him twice more before he was finally placed in handcuffs.

I wish the video were available online (I’ve posted a different one below), but it’s not. Osbourne was charged with and convicted of interfering with an officer (fine) and three separate counts of attempted assault in the first degree, one for each officer that was tasing and putting him in a choke hold. Naturally, he appealed, arguing that it was impossible for him to have the intent to commit this act because he was getting the ever-lovin’ shit kicked out him and had no control of his bodily movements due to 10,000 volts of electricity repeatedly being shot into his body.

The Appellate Court’s decision was written by Judge Michael Sheldon, who is considered by many (myself included) to be one of the smartest appellate judges in CT and a likely candidate for the supreme court in the next few months. Judge Sheldon used to run the criminal clinic at UCONN Law and his work has directly and indirectly helped me and many other criminal defense attorneys in this State (to be clear: I’ve never met him). Which is why it pains me to say this:

Judge Sheldon: You mad, bro?

The opinion affirming these convictions is long and convoluted and makes the argument with a straight face that Osbourne had taken a substantial step toward shooting all three police officers individually. While being tased three times, being put in a choke-hold and being helpless on the ground.

The jury also reasonably could have found that the defendant gave the officers stubborn physical resistance from the beginning of the incident until the end; that, although the defendant was being tased, and thus was incapable of voluntary physical movement until just before he reached for his gun, he was restored to  full strength and function, with the capacity to engage in deliberate physical movement, as soon as each tasing cycle ended; and that, when the second tasing cycle  ended, he immediately reached downward with his right hand to the right front pocket of his shorts, from which he grabbed and partially removed his cocked and loaded gun.

So what, exactly, did the video show? The defendant included a frame-by-frame breakdown in his brief:

When the second [Taser] charge stopped at 00:28, the defendant’s hand had not come in contact with the gun, nor had his hand come in contact with the pocket containing the gun. At  00:28, the defendant had experienced nearly 11 straight  seconds of intense pain, incapacitation and electrocution-like effects from the Taser.

At 00:28, the defendant’s right hand can be seen near his pants pocket which contained the gun. The defendant did not touch the gun or pull it out of his pocket. At 00:29, the view of the defendant’s pocket is blocked for a fraction of  a second and then (also at 00:29) when the pocket becomes visible again, we can see the defendant’s arm stretched out away from his body and the pocket.

At 00:30, the video shows Larregui’s leg and foot in between the defendant’s arm and his body.  At 00:30 to  00:31, the gun comes out of or falls from the defendant’s pocket on its own. At this time the defendant’s arm is still outstretched and not near his pocket or the gun. At 00:30 of the video, someone other than the defendant  is heard saying to get the ‘fucking gun out of that  pocket.’

The clicking from the Taser can be heard at the very end of the 00:31 mark, meaning Larregui has  begun to [tase] the defendant for the third time. When the [tasing] starts, the defendant does not have, nor could he have, the gun. Thereafter, while the camera is pointed at the ground and the defendant is yelling in pain, someone other than the defendant says, ‘I got the gun’ immediately before the gun discharges at 00:35. Confirming that someone other than the defendant picked up the gun and dropped it, a voice that is not the defendant’s is heard at 01:30 of the video saying,  ‘Dude, I went to go grab it and it went right off. . . .  It bounced right off the ground.’’

There is presumably less than one second (took you longer to read that and sentence and this and this and this and this…) in which he “takes the gun out of his pocket” which forms the “substantial step” to sustain his attempted assault conviction.

It is very critical to note that nowhere in the opinion does the court actually disagree with the description of the video I just quoted above. It merely says, “well, the jury could have chosen to believe the cops’ version”, which, if you’ve just read this post, is completely belied by the video itself.

The jury reasonably could have found that the video shows the defendant reaching towards his pocket and then a silver gun appearing at or near the pocket before falling to the ground beneath him.

Because magic.

The deference to the cops’ version and the handwavium of this apparently “reasonable” juror allows this court to uphold this absurd conviction who, I don’t know, had a gun on him? And any man with a gun in the vicinity of police officers is clearly a man who will eventually shoot such officer, so we just have to find a way.

Here, watch a video of a cop being tasered as part of his training. Notice how uncomfortable he is and how scared he is. But, of course, Osbourne should’ve had no problem with reaching for gun right after being tased twice in quick succession.

[youtube http://www.youtube.com/watch?v=UbY4nOEz1V0]

Allow me to ask again: You mad, bro?


10 thoughts on “When there’s a cop, there’s a way

  1. WyrdWyrd

    That sucks awfully that, that happened. As a child of liberal, hippie parents, I’m well aware of the sometimes excesses and abuses of police officer’s powers.

    And it’s even worse that the judge, abused his power in turn, ignored the evidence, and upheld the conviction. I’m sure he had his reasons. I’m sure they were crappy reasons because, if they were good reasons, he would have just stated them outright in his decision.
    But I have a different question. Given that police officers sometimes do abuse their power, and given that it’s still got to be better to have an audio or video recording than it is to not have an audio or video recording, have you heard any news on the topic of people who capture police antics on video being charged with a crime for making the recording?

    Obviously, in this specific incident, since the video was apparently created by some automated mechanism inside the taser itself (good idea, btw–too bad it was unsuccessful here), it’d be hard for the police to accuse the defendant of illegally recording them while they were tasing him and accusing him of going for the gun.

    But it’s really alarming to me–not just that the police might abuse their power, but that afterwards there might be no recourse whatsoever not even with video evidence, or that you could be charged and incarcerated simply for recording such evidence.

    Furry cows moo and decompress.

    1. Gideon Post author

      I think Carlos Miller’s blog focuses a lot on that, as does Radley. I’ve written about it here. The CT legislature recently passed a bill to make it explicit that members of the public have the right to videotape police. It’s a big issue that’s being debated across the country these days.

  2. Edward Nelson

    @ Gideon: Great response to WyrdWyrd’s question. I was going to provide the same information. Before we had a U.S. Constitution, we had what was called an Articles of Confederation which only set out the construction of the Executive, Legislative, and Judicial Branches. James Madison, Thomas Jefferson, and Patrick Henry were staunch supporters of amending the Articles of Confederation to include individual rights, in which, ten (10) were included (the first ten [10] Amendments) which have historically been recognized as the bill of rights. Once the ten (10) Amendments were incorporated, the Articles of Confederation became known as the United States Constitution. Unfortunately, most citizens have not benefited from a civics class that would teach them the importance of these Amendments. However, my jaw drops when I hear a juror state that s/he cannot hold an officer accountable for misconduct of a Constitutional magnitude. The synergy between education and law are very important to the Constitutional experiment. Many times lawyers leave the courtroom feeling as if the jurors were idiots. Likewise, jurors leave the courtroom feeling as if lawyers were idiots. Unfortunately, jurors do not fully understand the importance of their civil duty and the ramifications that follow their decisions. When jurors understand their function, you’ll see an impact from their decisions that usually results in immediate reduction of the misconduct before them. However, if stupid does not punish stupid, stupid things will continue to happen. I suggest mandated civics course to all high school students as a prerequisite to graduating. Our government thrives on cloaking misconduct by utilizing uneducated citizens.

  3. Puzzled

    Worse, the video didn’t go to the jury in the deliberation room as required by PB 42-23, which says that exhibits “shall” be submitted to the jury. (This is different from most states which makes submission of exhibits within trial court discretion.) Instead, jury had to keep coming back to the court room to see the video in public without the ability to talk about it while watching it.

    The Appellate Court doesn’t address PB 42-23. It specifically doesn’t address whether the trial court misapplied State v. Gould (dealing with testimonial recorded evidence which likely falls under PB 42-26 not 42-23). Net result is trial courts and counsel did not get guidance about how to handle demonstrative digital exhibits and whether such exhibits must or merely may be sent into the jury room. This is going to be a growing problem as more and more digital evidence comes into court. All this opinion says is that this is not a constitutional issue, but only an evidentiary/trial management issue that was not preserved by trial counsel.

    So Osborne is going to have to go to habeas, where habeas counsel can say that the Appellate Court held that trial counsel didn’t preserve this issue (1st prong of Strickland) and then argue the merits of the claim to show harm (2nd prong of Strickland). However that ends up, there will be an appeal from the habeas, just putting the issue back in front of the Appeals Court hopefully for a ruling on the merits this time.

    A moral of the story for trial counsel is to plan ahead on how digital exhibits are going to get to the jury room and clearly object under both 42-23 and the constitution (fair trial, due process, right to present a defense, etc.) if the trial judge tries to limit jury to playback in the courtroom.

  4. duke

    To help keep the appeals courts honest one good step would be to require the posting of the relative briefs and the addressing of all issues raised with mandatory penalties stipulated. I have seen too often where an appeals court has ignored legal questions and facts raised in a brief the court’s headlong rush to produce an opinion that the majority want to file. The ignored legal questions and facts simply could be rationalized away, so they are intentionally ignored and not included in the final published opinion.

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