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.
Friday, January 7, 2011
Sunday, August 30, 2009
No-Settlement Policies Part I
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.
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
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.
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.
Sunday, August 23, 2009
How To Survive an Arrest When You Haven't Done Anything Wrong
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.”
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.”
Wednesday, August 19, 2009
Tasered in Missouri
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.
Tuesday, August 18, 2009
Tasered for 15 minutes
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.
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.
Sunday, May 3, 2009
Mother jailed because she called out drunk commander
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).
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