Thursday, August 28, 2014

Clamor for Police Cameras

There’s no video of the confrontation between Ferguson officer Darren Wilson and 18-year-old Michael Brown—at least not any recorded by the police. Police Chief Thomas Jackson reported that his department has four cameras, two for dashboards and two to been worn on uniforms. He said that no one had installed the equipment as of the August 9 shooting because of a lack of funding.

Even had they been installed, these cameras might not have provided a complete picture of exactly what transpired between Wilson, Brown, and witness Dorian Johnson. A body camera, for example, might not have been pointed in the perfect direction or covered a wide enough field. Or maybe it wouldnt have been rolling.

No Oversight?

Even in those places where law enforcement currently employs body cameras, there appears to a remarkable lack of protocol as to their use. Stanford Professor David Sklansky recently told the Daily Journal that there aren’t any legal regulations about the storing and use of data from body cams. Writer Kylie Reynolds observes, “Without any laws, questions abound about when officers should turn on or off their cameras.” (“Police body cameras fuel privacy debate,” Daily Journal, Aug. 21, 2014 (partial reprint here).)

But it seems as though, if there’s any problem with the deployment of these recording devices, it’s that departments are capturing too much. Reynolds quotes Electronic Frontier Foundation senior staff attorney Jennifer Lynch, who says that agencies generally have the cameras rolling “100 percent of the time.”

Private Matters

As Reynolds reports, there are appropriate concerns about privacy in officer encounters, particularly when the interaction occurs inside a home or there are folks nearby who have nothing to do with issue at hand. And there’s legitimate unease about how long departments store video data, whom within their departments they let see it, and whether they release it to the public. One gets Orwellian chills when imagining hordes of officers wandering the streets, always recording us and never deleting the footage.

But it sure seems that—with proper regulations in place—police cameras could at least help the truth-finding process.

And they might even save taxpayers some money, allowing for more efficient internal investigations and reducing the amount of police-misconduct litigation. Several outlets report that, in places where patrol officers now wear cameras, there’s been a staggering reduction in complaints against police. Not only that, but cameras seem to incline officers to reserve their use of force for appropriate circumstances. Take the results in San Diego, for example.

Call for Change

It’s no surprise that, in the midst of the Michael Brown controversy, more than 148,000 people have signed a White House petition calling for a law on body-camera use. Because it surpassed the 100,000-signature marker, the administration has to respond to the request for the “Michael Brown law,” which would require nearly all police to wear cameras.

Few petition signers would argue that dash and body cams are an elixir. But, as long as legislatures and courts were to keep a close eye on the use of this kind of equipment, some good might result.

Tuesday, August 26, 2014

California Supreme Court: Don't Be Silent If You Want to Be Silent



When last we considered the contours of the privilege against self-incrimination in this space, it was on account of a startling holding by the United States Supreme Court. (“Deafening Silence.”) The Court had just issued a June, 2013 opinion allowing the government to prosecute suspects with silence. Specifically, the decision in Salinas v. Texas established what happens when:
  • an officer interrogates a suspect who isn’t yet under arrest
  • the suspect hasn’t explicitly invoked the right to silence, and
  • the suspect doesn’t respond.
In those circumstances, the Court said, the prosecution can present evidence of the defendant’s saying nothing and argue to the jury that it’s evidence of guilt.

Peeling Back

Perhaps it was na├»ve not to expect a further peel-back of the Fifth Amendment’s self-incrimination clause, but it seemed like there wasn’t much more a court could do. No one would dare say that a suspect who is under arrest and hasn’t heard the Miranda warning has to say some set of magic words in order to invoke the right to silence. Right? Well…

This month the California Supreme Court took Salinas v. Texas to its illogical extreme, holding that post-arrest, pre-Miranda-warning silence can be used against a suspect whom the police haven’t interrogated. (People v. Tom, S202107 (Aug. 14, 2014).) The onus is on the suspect to prevent this use by stating an unequivocal intention to invoke the privilege against self-incrimination. (For the limitations on the California holding, see Can the government use arrestees' silence against them?)

In the case before the court, defendant Richard Tom had been involved in a fatal car accident. The prosecution alleged but couldn’t prove that he was under the influence at the time of the collision. Neither before nor after his arrest did Tom ask about the welfare of those in the vehicle he hit. The prosecution presented this fact to the jury and argued that Tom’s seeming lack of concern about the victims proved his guilt. To the prosecution, he either knew he had committed a crime and therefore didn’t want to talk about it or was “too drunk to care.”

A jury convicted Tom of vehicular manslaughter with gross negligence involving great bodily injury. The judge sentenced him to seven years in prison.

Ivory Towers

The majority of California’s high court saw no problem with the deployment of Tom’s silence in the above manner. The dissenters, however, had something to say. And Justice Goodwin Liu served as the voice of reason. (The decision was 4-3.)

Liu offered more common sense than apparently suited the majority, rightly observing that “often the best way not to incriminate oneself is to say nothing.” 

Under the majority’s opinion, saying nothing will no longer cut it. Instead, “a suspect in custody cannot later claim the protection of the Fifth Amendment unless he breaks his silence and ‘clearly invoke[s]’ the privilege in a manner that ‘a reasonable police officer in the circumstances would understand.’”

Justice Liu commented of this holding, “No one disputes that if the police in this case had given Miranda warnings to defendant Richard Tom immediately upon placing him in custody, the prosecutor could not have relied on his postarrest silence to show consciousness of guilt regardless of whether he clearly invoked the Fifth Amendment privilege.”

Why, he asked, should it matter that the officers only gave Tom the warning later? And doesn’t the new rule develop “an incentive for arresting officers to delay interrogation in order to create an intervening ‘silence’ that could then be used against the defendant”?

The majority—with a straight face—responded to Justice Liu’s queries by saying the suspect should just invoke the privilege. Of course, this kind of ivory-tower approach does little for those defendants who aren’t completely up to speed on constitutional law. And even those who are might not know exactly what to do. Liu remarked:

[T]e court does not explain how its rule is supposed to work in practice. As Tom sat in the back seat of the patrol car, he was not being questioned by the police. To whom and how should he have invoked the Fifth Amendment privilege? Was he required to approach an officer on his own initiative and blurt out, “I don‘t want to talk? Would it have been enough for Tom to say just that, without mentioning the Fifth Amendment or otherwise indicating he didn‘t want to incriminate himself? And if so, how would that have been materially different from simply remaining silent? Moreover, why should it matter whether Tom invoked the privilege to a police officer? What purpose would that have served, since no police officer was trying to question him?

Unsettled

Though Justice Liu fought the losing battle in this case, the law on post-arrest, pre-­Miranda silence hasn’t actually been written—at least not in stone.

We now have different law in different places. Neither the federal circuit courts nor the courts from state to state agree on what the government can do in its initial presentation of evidence to a jury. Some say the Fifth Amendment prohibits prosecutors from offering evidence of post-arrest, pre-Miranda silence. Others, like the California Supreme Court, say it doesn’t.

And the California Supremes’ Tom decision doesn’t even create uniform law in cases arising out of the Golden State. That’s because the U.S. Ninth Circuit Court of Appeals, which hears federal cases occurring in California, has taken the pro-defendant point of view.

So, as we had to do when it came to cellphone searches, we’ll just have to wait. Only the U.S. Supreme Court can resolve the disparity. But if last year’s Salinas decision is any indication, the absurd will become the law of all the land.

Tuesday, August 19, 2014

What the Accounts of Michael Brown’s Shooting Mean in Legal Terms


To the extent that there’s any agreement about the facts of Michael Brown’s shooting, it appears to be that: 
  • Officer Darren Wilson ordered Michael Brown and his friend out of the middle of the street
  • there was some kind of struggle in or around Officer Wilson’s car
  • Wilson’s gun discharged, and
  • Wilson fired several more shots after Brown was some distance from the car.
Of course, witnesses and the police are sharply divided over the facts that determine whether there was a legal justification for Wilson’s use of force. One of the most crucial points is whether the officer fired as Brown tried to escape.

Fleeing Suspects and Deadly Force

Officers are entitled to use at least some force on fleeing offenders. But the circumstances in which they can use deadly force against them are quite limited. (The United States Supreme Court has hesitated to say what, exactly, constitutes deadly force, but shooting to kill surely fits the bill. (Scott v. Harris, 550 U.S. 372 (2007).))

In Tennessee v. Garner, the U.S. Supreme Court held that an officer may use deadly force to stop an unarmed and fleeing felony suspect only where: 
  • such force is necessary to prevent escape, and 
  • the officer has probable cause to believe that the suspect poses a significant threat of serious harm to the officer or others.
The Court said that an officer can use deadly force if it’s needed to thwart escape and it appears that the suspect has committed a crime involving serious harm or the threat of it. But the Court held that an officer in this situation must provide some kind of warning “where feasible.” (Tennessee v. Garner, 471 U.S. 1 (1985).)

Witnesses Diverge

Dorian Johnson, who was with Michael Brown as events unfolded, says that Wilson started the physical encounter. According to Johnson, the officer grabbed Brown by the neck from a patrol car and pulled him toward the vehicle. Brown tried to pull free; the officer fired a shot. Brown began to run away. The officer got out of his car, pursued Brown, and fired a second shot that hit the young man. Brown turned around, hands in the air. He began to plea with the officer, who shot him dead. (“What we know about Michael Brown’s shooting.”)

Witness Tiffany Mitchell says she saw Brown and the officer “tussling through the window,” with Brown trying to get away. Mitchell essentially corroborates Johnson’s account from this point on.

But a radio-show caller who claims to have Officer Wilson’s version of events says that Wilson received word of a moments-earlier strong-arm robbery. She says he got this report after he had ordered the two young men out of the middle of the street. This was just before things got physical. He was suspicious of the two young men at least in part because they appeared to have cigars, cigars being the product of the reported robbery.   

The caller’s account aligns with the police’s. The authorities say that Officer Wilson tried to get out of his car, but that the physically imposing Brown pushed him back in. Then Brown assaulted the officer and tried to get hold of the officer’s weapon. (“What we know....”)

The caller takes it from there, reporting that the gun went off once during the struggle. Her account, which a “source with detailed knowledge of the investigation” confirmed as a match of Wilson’s, has Wilson then pursuing Brown and Johnson. Wilson orders the two to freeze, they turn around, and Brown taunts Wilson before running at him at full speed. Then Wilson unloads all those shots. The caller says that, according to Wilson, “ballistics will prove [Brown] wasn’t shot in the back like the other people are saying. . . .”


Justified or Not?

If you believe Johnson and Mitchell, Officer Wilson fired a shot at a fleeing Michael Brown. Brown hadn’t committed a crime against Wilson involving serious injury. If anything, he committed an offense along the lines of resisting arrest, but without using force against the officer: He was just trying to get away.

According to these two witnesses, there was no way the officer could have reasonably believed that the young man posed a significant threat of serious harm to anyone as he began to flee. Their story, if true, would mean that Wilson was never entitled to shoot at Brown—not from the car, not as Brown ran, and certainly not after Brown had surrendered.

Under the police and the caller’s rendition, Brown assaulted Wilson. Wilson knew that Brown had committed a crime involving serious injury or a threat thereof, that being either the officer assault or the earlier robbery. Even if Brown had been running away as Wilson first fired, shooting would have been the only way to stop the escape attempt. And Wilson couldn’t have feasibly warned Brown any more than he did. So, at least under a literal interpretation of Tennessee v. Garner, Wilson’s shooting once at an escaping Brown would have been justified. And all of the subsequent shots would have been in self-defense.

More Coming

With news that Eric Holder is heading to Ferguson and the announcement that a Missouri grand jury is convening on Wednesday, we’ll be hearing a lot more about what happened between Darren Wilson and Michael Brown. Wilson could face parallel sets of criminal charges from the state and federal governments, not to mention civil liability.

Much of what happens will turn on when, exactly, he first shot at Michael Brown.

Friday, August 15, 2014

Police: Michael Brown Was Strong-Arm Robbery Suspect


Update: The Ferguson Police Chief has announced that Officer Wilson didn't know that Michael Brown was a robbery suspect. Police Chief Jackson reports that Wilson confronted Brown because the teen was blocking traffic by walking in the middle of the street.

On Friday, Ferguson Police Chief Thomas Jackson revealed a critical piece of information about the shooting death of 18-year-old Michael Brown. Yes, he disclosed the name of the officer who killed Brown, an officer who reportedly had received no prior discipline in his six years with the force. But he also announced that when Officer Darren Wilson encountered Brown, he was responding to a report of a strong-arm robbery(A strong-arm robbery is generally known as the taking of property from another through threat, intimidation, or force.)

New Report

According to a police report Jacksons department released, an officer other than Wilson received notification of a “stealing in progress” at a nearby convenience store at 11:51 a.m. on August 9. The officer would later write that the store’s surveillance footage shows an incident beginning at 11:52 a.m., lasting a minute and two seconds.

In the report of the footage, the officer writes that Brown enters the store, followed by his friend, Dorian Johnson. Brown, while standing in front of the register, hands a box of Swisher Sweets to Johnson. Brown appears to get into some kind of struggle with the store clerk. Johnson puts the box on the counter. Brown takes another box of Swisher Sweets and begins to walk toward the exit. The clerk comes out from behind the counter with an apparent set of keys in hand. The clerk positions himself between Brown and the exit.

From there, the officer reports the following. (Stills from the footage included.)

Brown, still holding a box [of] Swisher Sweets in his right hand, grabs [the clerk] by his shirt with his left hand. Brown aggressively pulls [the clerk] in close to him and then immediately pushes him back into a display rack. Johnson continues out the door and out of the camera frame. [The clerk], no longer between Brown and the door, stops and watches Brown as he walks towards the exit door. Brown then abruptly turns back around and advances on [the clerk]. Brown towers over [the clerk,] appearing to intimidate him. Brown then turns back around and walks out of camera view.

AP Photo/Ferguson Police Department
Fewer than ten minutes after this encounter, Brown would be dead.

Force Justified?

The new information is certainly relevant. With its surgical release, the police are trying to lend credibility to Wilson’s version of events—whatever that version may be. They’re hoping to paint a picture of an officer tangling with a big man whom he believed to be dangerous.

As their theory would go, Wilson’s experience of the episode was shaped by the belief that his adversary had just robbed someone by force and intimidation. If Wilson was in the least bit jumpy—which they would never concede—they want you to understand why.

Of course, Brown could have done much worse than alleged without justifying the use of deadly force. Police officers can’t shoot dead unarmed robbery suspects who have been subdued. And they generally can’t do the same to fleeing lawbreakers.

That’s why we’re clamoring to know what Officer Wilson has to say about all this.


Looks like we’ll just have to wait.

Wednesday, August 13, 2014

Nude Sunbathing on Private Property: A Crime?

Fictional Jerry Seinfeld was once less than thrilled to encounter a nude traveler on the subway:

Naked Man: “I'm not ashamed of my body.”

Jerry: “Exactly. That's your problem. You should be.” 

(The Subway.)

To be fair, the guy had dress socks and shoes on. But that didn’t stop him from offending the sensibilities of comedy’s favorite protagonist, who apparently wasn’t super hip to body-image sensitivity.

Lewd Display?

The circumstances of another naked-man encounter weren’t quite as humorous to some folks in Farmington, Utah. On March 5, a 76-year-old man was reportedly sunbathing sans clothes in his backyard, which was enclosed by a fence. The fence abutted a church parking lot. The problem—at least to some in the area—was that the fence was chain link. (“Farmington nude sunbather, 76, heads to trial.”)

A police officer responded to the “scene,” where he was able to view the neighbor in all his glory. The officer’s probable cause statement made specific mention of the man’s genitalia. And a witness reported to the officer that several adults and children had seen said genitalia from the parking lot.

So, local prosecutors charged Myron Lee Kipp with misdemeanor counts, three for general lewdness, and four for lewdness involving a child. But, clothes or not, Kipp isn’t taking that lying down: With not-guilty pleas and a trial date in November, he could be intent on having his day in court.

“Affront or Alarm”

Believe it or not, there are lots of judicial decisions on nude sunbathing. Several courts have held that that it or similar conduct isn’t a form of expression protected by the First Amendment. (See S. Florida Free Beaches, Inc. v. City of Miami, Fla., 734 F.2d 608 (11th Cir. 1984); Chapin v. Town of Southampton, 457 F. Supp. 1170 (E.D.N.Y. 1978).) But this line of cases doesn’t tend to involve baskers on their own private land.
Under Utah law, lewdness involving a child can occur when one person, in the presence of another under 14, “exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area . . . in a private place . . . under circumstances the person should know will likely cause affront or alarm.” (Utah Code Ann. § 76-9-702.5.)
It could be that Kipp violated this statute—only the facts will tell. But even if he suffers a conviction, there might be a protracted legal battle over the constitutionality of the statute as applied to someone on his own property who happens to offend people elsewhere.
Kipp will be sure to emphasize that, when he shed himself of society’s sartorial constraints, he wasn’t in a public place. Like a subway.

Monday, August 11, 2014

Federal Charges for Shooting of Unarmed Missouri Teen?

In Ferguson, Missouri on Saturday afternoon, a yet-to-be-identified police officer shot and killed an unarmed African American teen. On Monday the FBI announced the opening of an investigation into the shooting of 18-year-old Michael Brown. The announcement came less than a day after a vigil that gave way to angry demonstrations and looting.

Tale of Two Stories

It’s hardly possible to know less about the facts than we do now. Some have decided that there couldn’t have been any justification for using deadly force against Brown. Witnesses have reportedly said that the young man tried to flee the officer’s patrol car with his hands in the air. As the LA Times reports,

Dorin Johnson, a friend of the victim, told Fox 2 that he was walking in the street with Brown when the police squad car pulled up. The officer said to “Get the eff onto the sidewalk,” he recounted.

“It was not but a minute from our destination and we would be off the street,” Johnson said.

Johnson said the officer didn't get out of his police car, but reached “his arm out the window and grabbed my friend around the neck.”

Another witness, Piaget Crenshaw, said, “I witnessed the police chase after the guy, full force. He ran for his life. They shot him and he fell. He put his arms up to let them know that he was compliant and he was unarmed, and they shot him twice more and he fell to the ground and died.”

The police have a different version of events. 

St. Louis County Police Chief Jon Belmar reports that Brown and a friend (presumably Johnson), were walking in the middle of the street. An officer who encountered the young men tried to get out of his patrol vehicle, but Brown pushed him back into it. The struggle moved into the officer’s vehicle, according to the official account. Both Brown and the officer tried to get hold of the latter’s firearm. A shot discharged during the in-car altercation. The men somehow got themselves out of the automobile, at which point the officer shot Brown multiple times. (“FBI will also investigate fatal police shooting of St. Louis teen.”)

Dual Sovereigns

The St. Louis County Police Department won’t be the only agency trying to get to the bottom of the incident. The FBI has announced the opening of a parallel investigation into the shooting, and U.S. Attorney General Eric Holder has federal civil rights prosecutors keeping tabs.

So, apart from internal discipline (the officer is now on administrative leave) and criminal prosecution by Missouri, the officer could also face federal charges. As the notorious Rodney King incident teaches, under appropriate circumstances, both the state and federal governments can prosecute someone for the same behavior. 

The federal government has jurisdiction where police officers are involved: It can prosecute these government agents for intentionally depriving someone like Brown of his rights under the U.S. Constitution or any other federal law. (18 U.S.C.A. § 242.) One such right is to be free from the use of unreasonable force. (United States v. Dean, 722 F.2d 925 (5th Cir. 1983). (For further explanation, see State vs. Federal Prosecution and Can police officers be prosecuted for excessive force?)

Of course, the legitimate refrain is that it’s often difficult—if not impossible—for people on the outside of a case to hazard anything other than a guess at what really happened. The same is particularly true at this stage of the Brown story. But whatever the ultimate narrative is, both Missouri and the United States will have had their say.

Friday, August 8, 2014

Michigan Porch Shooting Verdict: The Law and Message


Shortly before his conviction on counts of second degree murder, manslaughter, and possessing a firearm while committing a felony, Theodore Wafer explained why he opened his front door and fired on Renisha McBride: “I was not going to cower. I didnt want to be a victim in my own house. I drew first, that's how I see it.” (“Man who shot unarmed Michigan teen convicted…”)

A Loud Knocking

Early in the morning of November 2, 2013, 19-year-old McBride crashed her car in Dearborn Heights, Michigan. Her blood-alcohol level was more than twice the legal limit, and she had marijuana in her system. Apparently confused and disoriented, the five-foot-four-inch African American knocked—or pounded—on the front door of the home of Wafer, a Caucasian stranger 35 years older and nine inches taller.

Roused from bed at 4:30 a.m. by what he described as “unbelievable” banging on his front and side doors, Wafer grabbed his Mossberg 12-gauge shotgun from the closet. He made his way to the front door, opened it, and fired through his screen door, into McBride’s face. (“Man guilty of murder in Michigan porch shooting.”)

The prosecution and defense agreed on these essential facts. The question was whether, in light of Michigan’s self-defense laws, there was some justification for Wafer’s act.

Honest and Reasonable?

To convince the jury to convict Wafer of the most serious charge, prosecutors had to establish that the airport maintenance worker either intended to kill or seriously injure McBride, or acted in conscious disregard of a high likelihood that his actions would do the same. (People v. Vasquez, 129 Mich.App. 691 (1983); People v. Portellos (2012) 298 Mich.App. 431.)

The prosecution also had to establish beyond a reasonable doubt that Wafer didn’t “honestly and reasonably” believe that his use of force was necessary to protect himself from serious injury or death. Pursuant to Michigan law enacted in 2006, someone who:
  •     isn’t committing a crime
  •     has a right to be in the place in question, and
  •     honestly and reasonably believes that deadly force is needed to prevent imminent serious injury or death
can legally use deadly force without trying to retreat—even if retreat is feasible.  

And the law presumes that people who have used deadly force honestly and reasonably believed fatal force was necessary if they reasonably and accurately believed that their adversaries were in the process of breaking and entering into or invading their homes. (Mich. Comp. Laws Ann. §§ 780.972, 780.951.)

Because there wasn’t evidence that McBride was trying to bust into Wafer’s house, the presumption in favor of honest and reasonable belief of impending severe harm didn’t apply. And because he so clearly acted in a way that created a huge risk of grave injury or death, the entire case boiled down to whether he could have had that belief. It took the jurors,  four black and eight white, about eight hours in deliberations to agree that he couldn’t have.

Wild West

It’s hard to know what, exactly, to take away from Wafer’s conviction. The gun-control angle appears to be a nonstarter. The racial component can’t be ignored, but there wasn’t the kind of active profiling that appeared to produce the Trayvon Martin tragedy. (The case is also unlike the George Zimmerman prosecution in that there was some consensus about what transpired between the defendant and victim.)

But then there’s that line from Wafer’s testimony: “I was not going to cower. I didn't want to be a victim in my own house.” Wafer  obviously internalized the message that it’s un-American to back down from the chance of fight. What with legislators enacting stand-your-ground laws more befitting the American frontier than the 21st century and self-defense militants mythologizing the castle doctrine, it’s a wonder that more people don’t take to blasting unwelcome visitors.

So maybe that’s what we should take away: a renewed discussion about whether there’s really a place for laws that at least implicitly encourage people to shoot as anything other than a last resort.