Category Archives: cops

3 images about Ferguson you need to have handy today

I bet you’re all going to hang out with family today. All families, by law, have one or two racist fucktards who are gonna go on and on about how the Officer was defending himself and acting properly in the line of duty. They’re not gonna get it, but to explain that requires reading.

Here are three images – because people like your Uncle Bill aren’t the best at reading good – that you should print out and shove in their faces:

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Via. Note the staggering number of NA for Darren Wilson.

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Via. There’s more at the link.

And if you really want to troll someone – and why wouldn’t you? – there’s this:

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Via.

Happy Thanksgiving.

This isn’t about Michael Brown

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This isn’t about Michael Brown1. Or rather, it isn’t about just Michael Brown. It certainly isn’t about only this Michael Brown. It’s about race, power and a system that just affirmed itself.

It’s about anger at a system which has trained the powerless to accept their lack of power over and over again. It’s about anger at a system, that despite the promises of the civil rights era, has only affirmed the status quo: some lives are worth more than others. Some people will always get punished more harshly than others.

It’s about anger that those who are the most underprivileged, the most disenfranchised continue to be subjugated under the guise of the best system in the world.

It’s about anger that the ethnic majority has historically viewed and continues to view minorities as dangerous and frightening. It’s about anger that the majority is doing its best to clutch onto its slipping grasp through intimidation and fear.

Michael Brown was shot and killed by a police officer, like many, many others have been shot and killed by police officers. Darren Wilson wasn’t indicted or charged for that shooting like an overwhelming number of police officers haven’t been charged. While whites are certainly victims of police brutality, minorities are overwhelmingly so.

The anger is because it seems that Michael Brown was shot because of his race – and that doesn’t mean Officer Wilson shot Michael Brown specifically because Michael Brown was black. Rather, Wilson shot Brown because of what he believed about black people; what we’ve all read and heard about black people; what we’ve all been conditioned to realize about black people; what popular media regularly portrayed black people as.

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And more:

So when he stopped, I stopped. And then he starts to turn around, I tell him to get on the ground, get on the ground.

He turns, and when he looked at me, he made like a grunting, like aggravated sound and he starts, he turns and he’s coming back towards me. His first step is coming towards me, he kind of does like a stutter step to start running. When he does that, his left hand goes in a fist and goes to his side, his right one goes under his shirt in his waistband and he starts running at me.

At this point it looked like he was almost bulking up to run through the shots, like it was making him mad that I’m shooting at him.

And the face that he had was looking straight through me, like I wasn’t even there, I wasn’t even anything in his way.

Like an animal. Michael Brown was an animal to Darren Wilson.

That’s what this anger is about. That this non-indictment exposed the gaping race chasm in America: white people love police and authority when it comes to maintaining the social order. That social order is fairly simple: there are the whites who can do whatever they want, then there are the “criminals” and the “minorities” and the “gays”, except those that act like the white people. The system exists to contain the teeming masses of minorities/criminals and to keep them in check. If a black man is killed by a police officer, well that’s his fault.

As I’ve written before, for White America, the police force exists as a private security force, to keep them and their belongings safe and secure and separate from the uncouth, uncivilized and dirty Blacks and Hispanics. (Here’s another must-read on the subject from The Atlantic.)

For the rest of America, the police force is sadly nothing but an oppressor acting with the imprimatur of the greatest Democracy in the World.

That’s what this anger is about. It’s about the death of one boy, for sure, but it’s also about the death of the right to be free and the right to be equal in America.

It’s about the death of Dr. King’s dream.


Black men are exigent circumstances

Pursuant to the protections of the Fourth Amendment granted to every resident of this country, police cannot enter a residence or a closed bedroom without a warrant. This would violate the Fourth Amendment. There are certain exceptions to that warrant requirement, such as the existence of “exigent circumstances”.

[t]he term, exigent circumstances, does not lend itself to a precise definition but generally refers to those situations in which law enforcement agents will be unable or unlikely to effectuate an arrest, search or seizure, for which probable cause exists, unless they act swiftly and, without seeking prior judicial authorization.

There are three categories of circumstances that are exigent: those that present a risk of danger to human life; the destruction of evidence; or the flight of a suspect.

The exigent circumstances doctrine, however, is limited to instances in which the police initially have probable cause either to arrest or to search.

So, when one day police officers knocked on the door of the third floor apartment at 239 Knickerbocker Avenue, Stamford, CT, the following was known to them:

  1. GPS data from a third-party’s cell phone, which was believed to be in the suspect’s possession, suggested that the suspect had been in the general vicinity of that address (not that apartment) for some unknown period of time in the past 41 hours, and

  2. That the resident of the third floor apartment had recently been keeping company with two black men in her apartment. The suspect, naturally, was black.

Since the police were searching for a murder suspect from New Jersey, who they believed to be armed and dangerous, they thought it permissible to enter the bedroom without obtaining a warrant, because of “exigent circumstances”. But that’s just sophistry.

As Justice McDonald’s blistering dissent [PDF] states:

Thus, at the time the police knocked on Valvo’s apartment door, all they reasonably believed was that [the murder suspect] Singer possibly was in possession of a cell phone, that this cell phone had been in the vicinity of 239 Knickerbocker Avenue at some moment in the preceding forty-one hours, and that a man who has the same skin color as Singer had been staying in the third  floor apartment of 239 Knickerbocker Avenue for an unspecified period of time.

You’d think, now, that the name of the case is State v. Singer. It isn’t. It is State v. Kendrick [PDF]. Mr. Kendrick is one of those unfortunate black men who happened to be in the apartment at that time and in whose possession a gun was found after this warrantless search.

Mr. Singer was arrested in New Jersey, where the crime of murder had been committed. Further, the cell phone used to ping the general vicinity of Knickerbocker Avenue in Stamford? Never found in Stamford.

But this is all the information relied upon by the prosecution to convince a judge that exigent circumstances existed: the possibility that a black suspect had been in the vicinity of an apartment building and the knowledge that one of the apartments therein had a few black men in them.

That, the majority opinion states, is enough to lead officers to believe that there exists “a risk of danger to human life”.

Can you every imagine any court saying that about white people? The suspect is white, and armed, and that apartment building there has white people in it, so go ahead and burst into any room you want because officer safety!

Of course not. This stands only because being black carries with it the subtext of being a criminal. And, as this Court is wont to do, the result justifies the means: there was a gun, after all. So he was a criminal and he was dangerous.

The dissent makes the point that the police and prosecution may have had further evidence to tie those residents in that apartment to the cell-phone and the murder suspect, but chose not to present it. If that’s the case, this opinion is even more troubling.

What this signals, in that event, is that all the police and prosecution have to proffer to a trial judge in order to circumvent the Constitution is that the suspects are black. That, alone, is sufficient to justify an officer’s fear that the suspect is a danger.

We already know that in Connecticut minorities cannot freely walk the streets anymore without being suspected of criminal activity. Now minorities can’t sleep in their apartments at night without fear of cops busting in without any probable cause. Because our Court has affirmed that being black is the same as being armed and dangerous.

Facts are what judges say they are

A fact, in the real world, is defined as: something that truly exists or happens : something that has actual existence. In the legal world, a “fact” is defined as: something that the jury could “reasonably” have found. But even that’s not certain. Because judges also “find” facts, based on the evidence that they hear.

But, you say, that seems incredibly subjective. And subjective it is. Because what the judges hear and how they interpret what they hear is also colored by their own opinions of important things like credibility – who to believe and how much to believe. It’s also informed by their personal opinions, experience and beliefs about the world.

I wrote most recently about the importance of making sure that “facts” on the record are as clear and as indisputable as they can be and I’ve written in the past about the fallacy of calling legal facts facts and so it comes as no surprise that this paper, written by a former police officer turned law professor, makes the claim that Supreme Court decisions involving police and police concerns are based on unsupported “facts”.

Dash cam exonerates another man; reveals cops’ thuggery

Nothing that I can write will replace the impact of watching this 4 minute video, produced by ABC News 7 of a Bloomfield, NJ police department’s arrest of Marcus Jeter:

Particularly rich were the repeated warnings to stop resisting while subdued by three officers, the allegation that he was going for their gun when his hands were clearly nowhere near them and the completely bizarre ramming of his car by the second police vehicle.

Maybe they forgot that these cameras had video and not just audio or maybe they just figured that they could hide the video and no one would be any wiser.

Two of the officers were indicted and a third already plead guilty, but then there’s this:

Interesting to note, an investigation by Bloomfield PD’s scandal plagued internal affairs division had found no wrongdoing by officers.

Boy do they close ranks quickly. Meanwhile Marcus Jeter may have been spending many years in jail, another man whose claims of innocence would be pooh-poohed by the public and courts, in the interests of finality.

Maybe finally you’re realizing that cops are just as likely to be thugs as the Marcus Jeters of the world.

AQA: A conversation about the Fourth Amendment

Dan Klau – lawyer, blogger and Connecticut resident – and I engaged in a lengthy back and forth conversation last week on the importance of the Fourth Amendment, searches and seizures, the recent CT Supreme Court opinion in State v. Kelly and the mess in Ferguson. This is, we hope, the first in a series of conversations about pressing legal issues.


DAN:  Gideon, on August 12, 2014, the Connecticut Supreme Court officially released its decision in State v. Kelly [PDF].  The defendant challenged his arrest and conviction (on a conditional plea of nolo contendere) for narcotics possession with the argument that his initial arrest violated the Fourth Amendment and its counterpart under the Connecticut Constitution (article first, §§ 7 and 9). A majority of the Court held that the police were entitled to conduct a limited “stop and frisk” of the defendant, also known as a Terry-stop after the U.S. Supreme Court’s 1968 decision of the same name, even though the police did not have a reasonable, articulable suspicion that the defendant had done anything wrong. What they did have was a reasonable, articulable suspicion that another person who was walking down the street with the defendant when they detained him had committed a felony. That suspicion, the Court held, was reason enough to detain the defendant along with the actual suspect.

On twitter, on your blog, and in person, you have repeatedly complained to just about everyone you know about the lack of press coverage this decision has received.  Why do you think this particular case is so important?

GIDEON:  To understand why this case is so important we have to ask ourselves several questions: do I want to be stopped by the police when I’m out on the street, for absolutely no reason? Do I want to give the police that power over me; to seize and detain me, without any reason whatsoever to believe that I have done anything wrong? Is it fair that I should lose my individual right of freedom just because the police might mistakenly suspect my companion of committing a crime?

Frankly, there are also a lot of undertones of privilege. The common response is: “if I haven’t done anything wrong, I have nothing to hide”. So some might say: what’s a minimal incursion on my individual liberty if there’s something greater at stake: stopping crime. And that may be true for you. But it’s not true for thousands of others in our community. It’s not true, particularly, for the less privileged. For them, police intrusion is a repeating and wearying occurrence. For them, police intrusion is a way of subjugation. We have the luxury, from our suburbs or positions of privilege, to say that it isn’t a big deal. But just ask the people of Ferguson, or those stopped and frisked by the hundreds of thousands in NYC.

This case is important because there aren’t two sets of laws: one for the privileged suburban folk and one for the poor minorities. There is one law. This law applies to all of us. There is one Constitution. The right to not have our liberty confiscated without particularized suspicion applies to all of us. That’s why this case is critical.

DAN:  That’s quite a bit to chew on.  Let me try to break it down by asking you a quick follow-up question.  My impression from your twitter and blog comments is that you think the Kelly decision marks a significant change or departure from existing search and seizure precedent.  Is my impression correct? And, if so, in what way do you think Kelly changes the law?

GIDEON:  It is indeed a departure from existing law. The closest analogy is what everyone knows of as a “Terry” stop or a pat down – in other words, a stop and frisk. The law in that regard is that police need “reasonable and articulable suspicion” that a person has committed or is committing a crime in order to minimally detain them and conduct an investigation. Further, if they believe that the person is armed, then they can conduct a “limited” pat-down to search for weapons. So up to now, an individual’s liberty can only be seized if the police have some particular belief with regards to the subject of the seizure.

Kelly has created a whole new category whereby it is not necessary for police to have any belief that the person they want to detain has committed or is committing a crime or is armed. That, to me, is a significant departure.

DAN:  OK.  Let me challenge you on that point.  In my opinion, a critical aspect of the decision—and perhaps a reason why it has not received much press attention—is that the defendant asked the Court to decide whether the Connecticut Constitution afforded him greater protection under the circumstances of the case than the Fourth Amendment.  Why did the defendant ask the Court to consider the state constitution? Because it seemed fairly clear, at least to me, that he had no Fourth Amendment claim under existing precedent.

Here’s why:  As you know all too well, the protections of the Fourth Amendment, i.e., the need for a warrant based on probable cause and signed by a judge and the requirement that any search or seizure be “reasonable” even in the absence of a warrant (like in a Terry-stop case) only come into play if the conduct of the police rises to the level of a “search” or “seizure.”  The decision in Kelly cites U.S. Supreme Court case law for the proposition that when police tell a person to “stop” so that the officer can question him/or, that verbal command does not constitute a seizure for Fourth Amendment purposes unless the person actually submits to the officer’s request.

Why is that important in this case?  Because when the police told the defendant and his companion to “stop,” they did not submit to the request.  Thus, there was no seizure of either the defendant or his companion at that point under the Fourth Amendment.   The defendant and his companion then both ran away from the police officer.  While running, the defendant dropped a bag of cocaine. That gave the police officer a constitutionally justifiable basis to detain him.

In short, at least as far as Fourth Amendment jurisprudence is concerned, the decision does not seem like a departure from existing law.  I’m not saying I like the current state of Fourth Amendment law.  For the reasons you mention, I think it affords the police far too much discretion to stop people without a truly legitimate justification.  I’m just not sure the decision represents a significant change in federal law.

GIDEON:  Well, the Fourth Amendment to the United States Constitution provides the bare-minimum of rights that are given to citizens. States are free to provide greater protections – and in Connecticut we have. In our state, our freedom is “seized” under the state constitution when a reasonable person would not feel free to leave.

The argument in this claim of a constitutional violation is based on a violation of the Connecticut Constitution, which provides greater protections to our residents than does the federal constitution. So talking about the federal constitution is irrelevant in this circumstance.   All the parties – the prosecution, the trial judge, the defense attorney, the Appellate Court and the Supreme Court – agree on two things: 1) that Kelly was seized under the state constitution when he was first told to stop and, 2) more importantly, that the police had absolutely no reasonable or articulable suspicion to seize him when they did.

In other words, they had absolutely no basis to stop him and yet they did. And the Supreme Court justified that by saying that people who, as far as the police know, are completely innocent and have not given any indicia of criminal activity can still have their freedom curtailed because of officer safety.  I’m not the only one who thinks this is wrong and quite problematic: two justices wrote a blistering dissent from the Court’s opinion.

DAN:  So now we are getting to the nub of the case.  I agree with everything you just said. I just think it is important for readers of the decision to understand that the Fourth Amendment was irrelevant in this case because, under federal law, the police did not “seize” the defendant when they told him and his companion to “stop.” That command, however, was a seizure under the state constitution.

So now let me ask you this hypothetical, which I admit right up front is different from the facts of the Kelly case: Suppose the police have a reasonable, articulable suspicion that person A has committed a violent felony and they locate that person walking down the street with a companion, person B.  The police ask person A to stop.  He does, as does person B.  The police want to conduct a stop and frisk of A.  What should they do about B, who is hanging around?  They could tell him to move along.  What if he doesn’t?

GIDEON: Yes, it’s critical to remember that our state constitution in this case provides more protection than the federal government and that’s a good thing.

In your scenario, I think the police should do nothing. B is legally on the street; he isn’t harassing them and they don’t suspect him of committing a crime. He has every right to be there and should be allowed to. If, of course, he starts interfering with them then they can determine if he needs to be detained.

But your question raises a very important point: imagine if B is a reporter, or just a citizen photographer. Shouldn’t he be allowed to be on the street to observe their stop-and-frisk of A? Don’t we want citizens to have the ability to observe and record our constabulary? If we start saying that hey, if B doesn’t scoot, the police should have the ability to arrest him, we open ourselves up to all sorts of abuses: why wouldn’t they just simply banish all press and photographers from scenes of arrest so there’ll be no record of their violence?

DAN:  I think you’ve touched on a key point about the opinion, and one that has bothered me since I first read it.  As you state, the Connecticut Supreme Court has interpreted the Connecticut Constitution as providing more protection against searches and seizures than does the Fourth Amendment.

One of the ways in which our state constitution provides greater protection is by “triggering” the constitutional protections against searches and seizures (i.e., warrants, probable cause, reasonableness, etc.) at an earlier point in the police/suspect interaction. To briefly reiterate, whereas a seizure does not occur under the Fourth Amendment when the police demand that a person “stop” until and unless the person actually submits to the stop, under the state constitution the seizure occurs when the police officer makes the demand to stop, period.  Since the demand to stop itself is the seizure, it must be supported by at least a reasonable, articulable suspicion to pass state constitutional muster.

The problem I have with the Kelly opinion is that what the Court giveth with one hand it taketh away with the other.  Having provided state constitutional protection at the “demand to stop” stage, the Court then says that it is ok to stop a person as to whom the police have no reasonable suspicion whatsoever, simply because he happens to be in the company of someone who they do have justification to temporarily detain.

To me, the decision is inconsistent with the notion that the state constitution provides greater protection than the Fourth Amendment.  Which is why, I suspect, Justices Eveleigh and McDonald dissented.

GIDEON:  I think you’ve hit it spot on, Dan. And in order to demonstrate the ills of permitting police such unchecked power, we need look no further than the events of the last week. Ferguson is showing us exactly why we need greater protections for individuals and less power in the hands of law enforcement. The reports coming out of Ferguson of “walking protests only” and the arrests of journalists represent a worst-case scenario for the abuse of the ‘detention of companions’ policy endorsed in Kelly.

Imagine a scene where an officer is arresting a person for whom he has suspicion. His companion starts recording the encounter. The officer, applying Kelly, detains the companion for officer safety and thus: 1) shuts down the recording, or 2) arrests the companion for interfering with an officer if he keeps recording.  Is this what we want?

And of course, we still haven’t touched on the fact that the court failed to define just what a companion is.

DAN:  I don’t want that!  I’ll let you have the last word this time.  I look forward to our next conversation!

The consequences of a “confrontation” with cops

maherThat’s Mark Maher, a resident of Windsor, CT. Well, that’s him after Enfield Police Officer Matthew Worden got done teaching him a lesson. Naturally, Maher was then charged with interfering with an officer, because his face got in the way of the officer’s energetic fist-bumps with the ground. I guess Officer Worden learned from the Sunil Dutta school of policing, whose core philosophy is ‘Obey me at all costs or I will break your face’.

Lucky for Maher, there were dashcams. Two of them. I can’t embed them because screw you Hartford Courant. But here’s dashcam one, which shows you just how annoyingly Maher kept getting in the way of Worden’s colloquial greeting to the pavement and here’s dashcam two, which prominently features “stop resisting”, today’s version of “stop hitting yourself”.