National Police Accountability Project

Omerta1

2011-01-07T22:15:00.000-08:00

http://caselaw.findlaw.com/ny-court-of-appeals/1551032.html?DCMP=NWL-pro_injury

Synopsis:

In an action claiming that defendant-officers negligently discharged their firearms in violation of department guidelines, the dismissal of the complaint is affirmed where it was uncontroverted that all of the officers who fired at the suspect did so when they had a clear view of him, and all testified that they did not see any bystanders in the area while firing, such that it could not be said that the officers failed to exercise discretion in discharging their weapons.

No-Settlement Policies Part I

2009-08-30T12:51:00.000-07:00

The Mayor of a city in New Mexico implemented a "no settlement" policy a few years back. He will settle NO CASE involving police misconduct; they all have to be tried. Even if the plaintiff wins on liability at SJ, the mayor will force trial on damages. Federal judges don't like it, feeling some cases should settle, and they have other cases to try.

There have been about 3 exceptions, e.g., when the cop is prosecuted criminally for the conduct or some other unique circumstance.

Nevertheless, it has kept a lot of lawyers from filing those 2-10,000 dollar cases that you figure you will just settle, leaving injured plaintiffs without meaningful recourse, and allowing brutality to go on unabated.

No-Settlement Policies Part II

2009-08-30T12:48:00.000-07:00

Here in Seattle we also have no-settlement policy. In addition, the City’s private defense law firm has a monopoly on the police misconduct work. They have a scorched-earth type of defense litigation policy, relying upon the City treasury to fund their actions. The police union has a clause in their contract that requires this particular law firm defend the police officers.

For an example of how it works, I represented a man injured by the police. A lawsuit was filed for $11,000.00. The City deferred to its defense counsel who continued to litigate. At the end of the case, I did a public disclosure request for the defense firm’s billing records. They billed the city just over $87,000.00 on a case that could have gone away for $11,000.00.

Since 2002, this law firm has billed the City around $2,600,000.00 in fees for police misconduct cases.

How To Survive an Arrest When You Haven't Done Anything Wrong

2009-08-23T13:31:00.001-07:00

How To Survive an Arrest When You Haven't Done Anything Wrong

By James V. Cook

Racial profiling is real. If you're African-American and you're male, the chances are better than even that you will be stopped by law enforcement officers when you haven't done anything wrong. If you're African-American and female, they're only a little better.

In my practice as a civil rights lawyer, some of the most troubling cases have involved the Professor Louis Gates phenomenon: African-Americans, even accomplished professionals, who are arrested or detained based on wrong assumptions that involve police attitudes on race. Sometimes the abusive officers are also Black. However, in many communities, Black law enforcement officers have formed professional groups to protect the civil rights of minorities.

People who are career criminals know how to get arrested without getting hurt. They know how to talk, how to move, using non-threatening, deferential words and body language, how to hold in anger. They may joke with officers and interact in a friendly way, although they know that the officers' intention is to see them spend years in prison.

It is the young, unsophisticated kids and older adults with little experience with law enforcement who often get hurt. Kids may run from police because they are afraid to face parents, relatives, and church members if they are caught doing something wrong. Older adults may show outrage and, when they are innocent, assume that the Constitution protects them in an arrest situation more than it actually does.

The following are my suggested rules for arrestees to get through the experience safely, and then, afterwards, proceed to take effective action to assert their rights.

1. When stopped by police, immediately assume a non-threatening stance. Keep your hands visible as much and as quickly as possible. If you are in your car and your safety belt is fastened and police are asking you to show your hands and step out of the car, say loudly, "My safety belt is fastened. I have to unfasten it." Say what you are doing, and why, while you are doing it. Be aware that there may be video and audio recordings of the incident.

2. Speak clearly at all times. If asked to get out of your car, try to stay in front of the patrol car where a camera is likely to be aimed (but do not disobey officer commands). Be careful not to make statements that antagonize the officer. Keep your voice as calm as possible. Try not to gesture with your hands. Do not try to physically resist being handcuffed. Be aware that if the courts find that the officer had the right to detain you, they will be extremely deferential to the police in decisions to use force prior to your being handcuffed. Be aware that in Florida you have no legal right to resist an arrest, even an illegal arrest, with force.

3. Do not threaten a lawsuit. That is an invitation for law enforcement officers to pile on the charges and make sure they stick. Officers know that the best defense is a strong offense. Wait until the situation is defused, cleared up, or you are arrested and either jailed or freed. Try to contact a civil attorney without broadcasting your actions to law enforcement officers.

4. Try to gather names of witnesses and physical evidence as soon as possible. Keep in mind that people who witness wrongful police behavior may be outraged at first but with time outrage may fade. Have someone get witness statements while witnesses' memories are fresh and their willingness to help is at its height. Be sure no one is told what to say; only that they should include specific details like the date, the time, the place, of the wrongful acts, words that were spoken, descriptions, I.D. numbers, or names of the officers, and the names of other persons who were present. They should tell the story of what they saw in chronological order. Witnesses should an address and phone number. Have lots of pictures taken if needed to document any physical injury or damage. The imprints of too-tight handcuffs will fade in time.

5. If criminal charges are filed against you, try to get those taken care of first. If you enter a no contest plea in order to get the case over with or to "stop having to come to court," that plea may affect your rights to challenge the law enforcement actions in a civil lawsuit. However remember that police have no right to use unreasonable force even if they can prove the charges against you. If you are charged with Resisting An Officer With Violence or Battery on a Law Enforcement Officer, you will probably (but not always) need to win your case to sue. Those charges are often added by officers to immunize them from their wrongful acts.

6. Generally, courts will not let you proceed with a civil lawsuit while a criminal case is going on. If you file it, the civil court will most likely put your civil case on hold until your criminal case is finished. Because some evidence "goes away" like the recordings of the police radio transmissions, it will be best to make sure your criminal lawyer gets hold of those kinds of evidence. If you were arrested in a place where private businesses may have security cameras, like the parking lot of a retail store, make sure that you or your criminal attorney get a copy of the video recordings very quickly before they are recorded over. Remember, your criminal attorney has subpoena power.

7. If you bring a civil lawsuit for wrongful police conduct, you have the burden of proof. You cannot win a civil lawsuit by simply making allegations and making the police prove the allegations are wrong. A civil lawsuit usually means years of work and frequently tens of thousands of dollars in expenses. If your damages are not great, sometimes the best response to police misconduct is to become active in the community helping to ensure that what happened to you doesn't happen to others. Community organizations like the NAACP and the ACLU exist to protect rights. The NAACP now has a Rapid Report System (RSS) on police misconduct. For more information, go to www.naacp.org.

8. As soon as any criminal charges are resolved, file a citizen complaint against the officers who violated your rights. This can be a way that well-intended police administrators can see which officers are acting improperly. Remember that officers who make lots of arrests tend to be rewarded by the police hierarchy. Showing that many of the arrests involved misconduct may be a way to make sure that abusive police officers do not move ahead in the system. When you file a complaint, make sure you and your witnesses follow through with appointments with internal affairs investigators so the complaint isn’t dropped for lack of cooperation.

9. Remember that part of the problem is always political. It is easy for legislators to win votes by taking a tough stand on crime and voicing support of police. Often, those law-abiding citizens who become victims of police misconduct have also been supporters of tough crime legislation. But politicians who are "tough on crime" should also be tough in support of the civil rights of the accused, and be willing to say so in the same breath. It is only the constitutional rights of the accused that the wrongly accused have to rely on.

Most police officers became police officers for the right reasons and try to do the right thing. Some are bullies. In my work, the bad ones have made me really appreciate the good ones. The problem is more that good officers are often hesitant to restrain or to testify against bad officers when they see misconduct. An officer who stands by and permits your rights to be violated when he or she could intervene is also violating your constitutional rights.

A lawyer who used to defend police officers as a major part of his practice once told a group of Tallahassee civil rights lawyers at a seminar on police misconduct, "Almost every improvement in police professionalism has come about as a result of lawsuits by lawyers like you." Good police administrators who want to rein in the abusive practices of renegade officers also need the help of citizens willing to document and fight police misconduct.

James V. Cook is a Tallahassee civil rights attorney and a winner of the 2003 national NAACP "Foot Soldiers’ Award.”

Tasered in Missouri

2009-08-19T01:18:00.001-07:00

Oh, it gets better. The prolonged tasing caused him to have a 2nd back surgery rendering him disabled and now drawing SSI. When the wife was calling 911, another officer snatched the phone away from her and drug her around the pavement a while. She eventually got ahold of a second phone from a pedestrian and called 911 again. I can still hear what sounds like a taser going off in the background. She is going through knee surgeries.

Tasered for 15 minutes

2009-08-18T10:02:00.000-07:00

Guy was stopped for a minor traffic violation. Officer decided to
arrest him for reasons unknown, even to witnesses, and orders him to
the ground to be cuffed. Driver told officer he can't get on the
ground due to recent back surgery. Wife passenger told the officer
that too. Driver offered to turn around and place his hand behind his
back and allow himself to be cuffed as an alternative. Officer
declined the alternative and tased him to the ground instead. Guy was
twitching from the taser. Officer ordered him to quit moving so so he
could be cuffed. He tased him some more for moving around. This went
on for 15 minutes. I'm not exaggerating. The wife was on the phone
crying to 911 the whole time. I have the 911 recording and can hear
the taser zapping him in the background while she begs 911 to get the
cop to stop. A crowd of witnesses gave statements to defense (cops
refuse them) corroborating the driver's version of events. Troopers
arrive and stop the city cop from tasing him.

We are set for jury trial on misdemeanor resisting. Does any any one
have a quick list of what special discovery I should ask for related
to tasers?

I should add that the assistant prosecutor wanted to dismiss the case,
but his boss would not let him. The judge is upset with the state for
trying an innocent man. So I have a favorable judiciary and a
prosecutor unlikely to resist a motion for special discovery.

P.S. No training manuals existed, according to the local PD.

Mother jailed because she called out drunk commander

2009-05-03T11:33:00.000-07:00

Mother goes with her 19 yr old developmentally disabled daughter to state police post. Police want handwriting exemplars. Police are investigating who may have wrote a bomb threat on high school bathroom mirror. Before arrival mother is assured that she can be in room and that daughter will not be arrested. She is not allowed in room. One trooper says he will keep open the door and allow mother to stand nearby but outside door. That is fine. Then another trooper tries to close door. Mother complains.Post commander comes by and gets in her face, ordering her out of post. She says to commander "You need to get out of my face. You reek of alcohol!" Commander goes ballistic and orders mother, father, and daughter to leave. 40 exemplars were completed by then. Commander threatens mother as she is leaving, saying "you should watch your back".1 1/2 months later, mother is charged with hindering an investigation by a particular trooper in charge of investigation (not commander) who claims that he needed 100 samples, because that is what the state lab needed. This was of course not true. Trooper is impeached by his own affidavit in support of search warrant, as well as persons from lab, who say they don't need more than 30-40 samples.At preliminary exam, conservative judge does not bind over! I have good damages. Mother is heart patient, held in jail overnight, arrest timed to try to make her miss her daughter's graduation.I would like to sue commander too, but I have no evidence that he was involved in the decision to prosecute. But when she was arrested by two other troopers who had nothing to do with the event, she asked why. She was told by one of them "You called my commander a drunk. What do you expect?" I don't think this is enough, but I would love to be proven wrong.Otherwise, I have the 4th am issue covered. But I would like to plead the 1st am also. Anyone have any cases that are helpful? I already know about Houston v Hill (which likely doesn't apply).

Who were those masked men?

2008-06-25T11:16:00.000-07:00

I'm a lawyer with the Electronic Frontier Foundation, an internet civil liberties law firm. A person contacted us about a search of his adult nightclub in Florida, in which the officers wore masks, hid their identities and shut off the club's internal surveillance camera before executing the search. My recollection is that this is unlawful, especially in the absence of court permission. Does the NLG have someone in FL with whom this gentleman can consult?

Man Shot While Being Mentally Ill

2008-06-23T12:26:00.000-07:00

I wanted to share with everyone a recent decision denying Summary Judgment and the settlement in a failure to train case for which I posted a request for jury instructions a month or so ago. The case involved the shooting of a young ( 23) mentally ill (paranoid Schizophrenic) Ohio resident, "N".

He was shot when four Sheriff’s deputies went to pick him up on a probate court detention order to take him to a hospital after the family had called for help because he had stopped taking his medication (he was responding well to the meds). The deputies reported "N" was shot when he attempted to stab one of the deputies. The shooting occurred sixty seconds after the deputies approached "N". The deputies admitted that until one of them ran toward "N", maced him and tried to grab him, Nasir did not strike at them or move toward them and that all four were at a safe distance behind protective cover with guns drawn screaming at him until the deputy ran toward "N". No one else was anywhere in the vicinity except "N" and the deputies. Our expert testified that this was a case study in how NOT to approach someone suffering from paranoid schizophrenia and that the deputies should have been trained not to rush and to call for a CIT or other special assistance if the deputies were not trained themselves.

We only sued the Sheriff. There had been no special or continuing training related to dealing with the mentally ill even for the unit handling probate detention orders. Nor did the Sheriff establish a Crisis Intervention Team. We developed evidence showing the Sherriff and his command staff had been to programs about the importance of CITs and special training for dealing with the mentally ill. Claims were made under section 1983 and the ADA. The judge addressed the 1983 claim and was about to rule on the ADA claim when the case settled. Settlement included continuing jurisdiction of the court to enforce new initial training requirements, continuing training requirements, implementation of a Crisis Intervention Team, creation of a data base recording all background and interactions related to detentions/arrests of mentally ill individuals involving the warrant squad or CIT, and payment of $500,000.

Always Nice to See Reversals!

2008-06-22T02:20:00.000-07:00

A police officer was trying to help an injured person and got beaten up by his own department! He lost the case at the trial level, but the Appeals Court reversed the decision.

Johnson v. Dist. of Columbia, No. 06-7136, 06-7180
In a suit brought under 42 U.S.C. section 1983 for use of excessive force in an unreasonable seizure under the Fourth Amendment, as well as common law claims of police brutality, assault and battery, and intentional infliction of emotional distress when a police officer was mistaken for a criminal when he unwittingly landed in the middle of a drug bust, summary judgment in favor of defendant is reversed as to section 1983 claims and affirmed as to the common law claims where: 1) defendant was not entitled to qualified immunity against the section 1983 claims because of conflicting deposition testimony, which gave rise to genuine issues of fact material to both the section 1983 claim and the qualified immunity defense; and 2) the Police and Firefighters Retirement and Disability Act barred plaintiff's common law claims. Read more...

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A police officer was trying to help an injured person and got beaten up by his own department! He lost the case at the trial level, but the Appeals Court reversed the decision.

No Crying In Court!

2008-06-20T08:01:00.001-07:00

Sounds like Ohio prosecutors have a lot of time on their hands.

No crying in court

Butler 's Piper says defense lawyers' tears can sway jury

BY SHEILA MCLAUGHLIN | SMCLAUGHLIN@ENQUIRER.COM

HAMILTON - Quit your crying and begging!

That's the theme of an offbeat motion that Butler County prosecutors filed this week trying to keep defense lawyers from getting emotional in death-penalty cases.

The request was filed less than two weeks after defense lawyer Greg Howard shed a few tears and begged jurors to spare Harvey Johnson's life for killing of Kiva Gazaway of Liberty Township.

It might have worked. Johnson got life in prison instead.

Prosecutors go toe-to-toe with Howard again in August in the case of James O'Hara, who is accused in the July 2007 fatal stabbing of Stanley Lawson, 38, of Middletown .

"Crying brings out almost a Pavlovian response in some people," Prosecutor Robin Piper said, denying that the motion is meant to single out Howard.

It doesn't accuse Howard specifically of crying on cue. But it mentions that defense lawyers are known to do that - even trained to do it - as part of their strategy.

"Our motion is more about requiring an attorney to maintain composure during closing arguments and during the trial," Piper said. "Prosecutors are held to that standard. Defense lawyers should also be held to a similar standard."

Judge Andrew Nastoff will listen to lawyers argue about it July 18 in Butler County Common Pleas Court .

Howard denies being able to make his tear ducts flow in front of a jury.

"It's an emotional thing. You've invested a lot of time and effort in these cases, and you're trying to save your client's life, and occasionally it happens," he said.

To Howard, the prosecutor's motion is nothing more than a legal maneuver aimed at bettering their chances at sending O'Hara to death row.

"They want the death-penalty verdict so badly that they're doing whatever they can to try to get one," Howard said.

Sixth Inmate Dies at North County Detention Facility

2008-05-20T21:52:00.000-07:00

I have been contacted by a woman whose brother-in-law died at the North County Detention Facility in Santa Rosa, California. The man's death is referred to in this newspaper article: http://www1.pressdemocrat.com/article/20080313/NEWS/796295436
Death of (redacted) at the North County Detention Facility, honor farm parcel, in Santa Rosa, California

Dear (redacted),

I am writing to you regarding the death of (redacted)at the North County Detention Facility in Santa Rosa, California. He was a 36 years-old man of Mexican origin. He died on March 13, 2008, while he was serving a six-month sentence at the North County Detention Facility. Samuel died alone. For the past seven years he had not seen his daughter or any of his relatives. In 2004 Samuel was convicted of a misdemeanor crime of domestic violence. I believe that he should not have been found guilty since the woman who accused him may have lied to the authorities. He was never violent. On the contrary, the woman took advantage of him. He was vulnerable. He was undocumented, alone and away from his family. She exploited him. She may have made him believe that she was going to get him a green card. Because of that she made him give her all his money. She also made him stop calling his sister and his daughter in Mexico. Later, for several years, another girlfriend, Joyce Varela, took advantage of him because of his vulnerability. Again, she exploited him. She made him believe that she was going to get him a green card.

Because of that he worked hard and she made him give her all his money. She also made him stop calling his sister and his daughter in Mexico. According to co-workers and friends of Samuel he did not want to see her anymore. Therefore, she harassed him. She went to the place where he worked to puncture the tires of his car. In addition, deliberately, a couple of times, she tried to run over him while she was driving a car. She then reported him to the police. The police arrested him on January 3, 2008. He was sentenced to six months in prison for drinking alcohol when Joyce Varela made Samuel go to bars to make him drink alcohol with her so she could exploit him. Not only did Joyce Varela take advantage of Samuel but she also frequents bars to drink alcohol and to chase other men. I believe that he was unjustly incarcerated. Once in jail, Joyce Varela visited him just to laugh at him. She is a cruel woman. While Samuel was in prison, he fell into a severe depression. He lived in anguish and desperation since he was going to be deported to Mexico. According to prison officials, he also worked out.

On March 13, 2008, he died. The North County Detention Facility officials failed to provide the proper medical treatment for his depression. They also let him worked out without a doctors' supervision. If they had provided the appropriate medical care to Samuel potentially he would still be alive today. The American dream turned into a nightmare. Also according to the media the security and the quality of jail medical care at the honor farm parcel are questionable.

The enclosed article published by the Press Democrat of Santa Rosa, California states, "Castillo-Martinez is the first Sonoma County inmate to die since Nov. 30, and the fifth since June 17. Each case has been investigated amid criticism by civilian groups skeptical of the quality of jail medical care." I am looking for an attorney to file a lawsuit against the North County Detention Facility for damages suffered by my niece Naomi Castillo Ramirez due to the death of his father, Samuel Castillo Martinez, which could have been prevented. And also to press charges against Joyce Varela, and against the woman who accused him of domestic violence, for exploiting Samuel, for destroying his life, and for making him forget about his daughter Naomi.