In case anyone needing reminding, this suit alleging that Arizona deputies beat a lawyer who was trying to comfort his client is shocking. I wish it would go to trial, but these things generally resolve before that level. Still, it’s a reminder of all the things that attorneys are up against.
Former Lee County Sheriff’s Deputy, Sgt. James Magas, was fired last week for insubordination, essentially lying. He left his assigned duty area, and then lied when he was questioned about his location. The good news is that Sheriff Mike Scott continues to hold his employees accountable if they are derelict in their duties. He has consistently punished untruthfulness at LCSO. The sad thing is, that it is another example of how some cops will lie, even over rather silly little things.
Charlotte County Sheriff’s Detectives have arrested a former FWC (actually, Fish and Wildlife Conservation Commission, or FWCC) officer for twice having sexual contact with a 14-year old. FWC Officers are full law enforcement officers, like deputies, troopers or police officers. Reports indicate he resigned his job prior to turning himself in on the charges.
Sarah Graham has been accused of no crime, and the Naples News found no record of criminal history. She was stopped by a deputy-in-training and he asked to search her. When she responded that she knew her rights and declined to search, the deputy didn’t take it very well. She alleges that she started to leave and he proceeded to Tase her until she collapsed to the ground, and that he tased her again while she lay on the ground convulsing. The deputy, Brian Gardner, was subsequently reprimanded for improper use of non-deadly force, and reassigned from road training to the corrections department.
First, Ms. Graham is absolutely correct. She has a right to decline being searched. While a deputy may engage in a consensual encounter if he has no reasonable suspicion of a crime going on, the key word is consensual. He can only talk to someone as long as they consent to continue the encounter. They have a right to walk away, and he has a duty to let them go. Cops frequently don’t understand this. The report indicates he was reprimanded for his use of force. Secondly, he should also have been reprimanded for the illegal detention that he attempted. Ms. Graham has a strong suit against the department and Mr. Gardner, though I don’t know if her injuries warrant the maximum, which she is requesting.
A friend who was formerly in law enforcement feels that tasers can be the worst tool available to police. Where high restraint must be used before an officer is justified in using a firearm (deadly force), a much lower bar can be used to argue justification for a taser. That leads to officers overusing the taser, and freqently, as there are often no consequences. I applaud Ms. Graham for seeking to impose consequences for this dereliction of duty.
This lawsuit comes right on the heels of another lawsuit that was just settled by LCSO. They paid a “substantial” unnamed settlement to the family of Nicholas Christie, who was pepper sprayed to death while restrained to a chair in the Lee County Jail. Sheriff Mike Scott indicated that money will be paid by insurance. Both these cases represent substantial legal expenses that find their was from our tax dollars, either through legal fees, insurance premiums, or costly payouts. Both represent failures in training and restraint by the deputies sworn to protect us. Also see the story from a few days ago about the Collier deputy who punched a guy after he surrendered.
UPDATE: Settlement is for 4 million dollars. See link in the comments…
Posted in 4th Amendment - Search & Seizure, Civil, Criminal Law, Fort Myers / Lee County / Southwest Florida #SWFL, Police
Tagged bad cops, brian gardner, excessive force, fort myers, lcso, mike scott, sarah graham, wrongful death
Here’s a great blog post from Attorney Jamison Koehler regarding the importance of invoking your right to counsel… and why asking for an attorney is better protection from improper police conduct than exercising the right to remain silent. The Dorsey case cited is an excellent example of the Courts defending the rights in our Constitution even as law enforcement officers try to find loopholes or to sidestep the rights. Worth read!
Naples police conducted a “bait” operation last Friday. They left a bag and phone on a table at the mall, and waited for someone to walk off with it. While obviously it is theft to walk off with other people’s property, is this the kind of operation that justifies a multi-officer undercover sting operation. Or is this just a cheap way for them to pad their numbers.
Here’s why it was a really ‘cheap’ arrest. It only takes $300 for a theft to become a felony grand theft. By leaving a fancy I-Phone and sunglasses, the cops ensured that they could charge this guy with a felony instead of just a misdemeanor. You’d think that for a charge to be a Grand Theft, it would need to involve at least a grand. You’d be wrong. I don’t support theft, but there has to be something better for these cops to be doing than setting up petty thieves for felonies. In fact, it’s a rather expensive arrest, between the several detectives used to run the operation to processing an enhanced charge in the justice system. It probably costs several times as much to prosecute a felony case than a misdemeanor, so it is the citizens of Florida that pay for this aggressiveness.
When you here police officers say things like, “our primary job is not to help anybody, our primary job is not to assist anybody, our primary job is to get those numbers…” and “Police officer perjury in court to justify illegal dope searches is commonplace,” you shudder to think about the people who have been illegally locked up. Everyone who works in the criminal system hears allegations of cops lying on an everyday basis. Time and time again I have to tell clients it doesn’t matter what the truth is, because this is what the cop is going to say in court – and the judge will almost always take the word of the officer over that of the accused. It’s a rare, and exciting victory, when we can actually catch a cop in a lie. Definitely check out the full article in the NY Times. The article is correct, as a defense attorney, you frequently do have to be crazy to accuse the cops of lying, or other misconduct.
My friend Mary Beth and I were just talking about the problem of Federal grants funding agencies. The example she gave was of cops finding a junkie, and having him take them to a drug dealer and purchasing the drugs for the undercover, and then charging the junkie with drug dealing. It was far easier to charge the junkie than the actual dealer, and it looked the same in the numbers – so junkie went to prison. And those cops didn’t have to lie to do it.
Another area that is ripe for cops to stretch the truth are DUI arrests. Suspects are subjected to tests, and their performances are subjectively judged by the police officers. Sadly, only a small percentage of squad cars have cameras, and most DUI arrests are not on video, so it comes down to the word of the officer. The recent lawsuit against the Utah trooper who was fired for faking DUI charges is likely the tip of the iceberg. Officers get special recognition based on the numbers of arrests they make (and not on the quality of the arrests). It is my personal belief that the law enforcement agencies don’t want cameras in some cars because they will help people win at trial. The cops want to prevent evidence from going in front of a jury. We need to demand more of our law enforcement officers.
Tyler Perry was in Naples today, along with Reverend Al Sharpton, to raise awareness of the case of two men who went missing several years ago in Collier County. The connection between the men is that they were both last seen by a Collier County deputy: Cpl. Steve Calkins. Cpl. Calkins was fired from the Sheriff’s Office at a later time, after giving inconsistent stories regarding the missing men. Perry has offered a $100,000 reward for information that leads to solving the cases. Sheriff Kevin Rambosk appeared with them in the call for information.
UPDATE: Some tips are coming in…
John H. Phillips
Above the Law has this story, with an in comparable headline: “Cops’ Fear Of Handcuffed Paraplegic Turns Out To Be Unreasonable.” In short, after tackling the guy, they proceeded to search his home without a warrant. There are few exceptions to allow a warrantless search of a home. Apparently, the court did not accept the state’s argument that the cops were justified by the exigency exception for officer safety. However, the court found that the cops really needn’t have been concerned for their safety, since they had already tackled the paraplegic out of his wheelchair. I recommend you check out the full article from Elie Mystal at ATL, and the sharply worded judicial opinion on the case. In dicta, Judge Steven Dankof comments that the fourth amendment protections against unreasonable search and seizure is “under almost constant seige” and declines to contribute to further denigration of this constitutional right. Kudos Judge Dankof.
I got hooked on “The Good Wife” last year, and have started going back through season 1 on DVD. I have discussed Sunday’s episode earlier this week, for the Overzealous Police Seizure aspect of the story line. Now that I have seen the episode, I can report that there are several criminal law issues of interest that they dealt with. Among those most interesting: false K-9 alerts, profiling, recording police encounters, and of course the seizure issues that I’ve already talked about. Most cases don’t have all of these issues rolled into the same case, but each of these issues come up all the time.
For now, check out the episode, and I will try to follow-up with the other issues in the future. Until then, just consider the first encounter they have with the overzealous cop. The cop stops them for an imagined infraction, and detains them long enough that Alicia misses an important meeting. Without even getting into all the other problems with the situation, imagine if it was you missing an important work meeting because a cop felt like giving you a hard time. It’s happened to me, and I’m not even in a class that is frequently profiled. It can happen to you.
Also, how frustrating would it be for a cop to lie about the reason for a stop. It’s one of the “white lie” variety that cops do all the time. No biggie, until it happens to you. I just had a client in my office who was horribly frustrated not that he got a ticket, but that the cop lied about the pretext of his stop. The courts allow this kind of pretextual stop, and doing so practically encourages our law enforcement to lie. There’s a famous case called “Whren” that says it doesn’t matter why the cops pull someone over, no matter what motive, as long as they provide the court with any valid reason for the stop. It leads to innumerable profiling situations like the one depicted in “The Good Wife”.