Author Archives: SHG

Police Shootings: The Worst Discretion Wins

Some police departments have established rules for when officers can unholster their sidearms.  The concern is that a time may arise when a cop should have, but didn’t, draw his gun because of the rules. The concern is that the cop may be killed for following the rules.

No one wants a cop killed, especially his department. So the New York Police Department, which has a Patrol Guide big enough to choke a carriage horse, dealing with everything from the tilt of a cop’s cap to his nose hair, has no rules as to when a cop can draw his gun.

There are some New York City police officers who can count on one hand the number of times they have drawn a gun, even over decades on the force.

Then there are the officers who patrol the city’s 334 public housing complexes. There are about 2,350 uniformed officers in the department’s Housing Bureau, about 1,825 of whom are rank-and-file police officers.

To some of them, drawing their guns, even with no present threat, is routine, a practice borne of habit or some internal gauge of an encounter that might go bad. And their bosses, unlike some police commanders around the country, permit it.

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You’re Ugly And You Dress Funny Too

There is no shortage of assertions that the harm suffered by words is real, so much so that those contending that hurtful words must be criminalized are no longer expected to explain why. It’s understood.  Thus, an intermediate appellate opinion out of Iowa discussed by Eugene Volokh either reflects  a return to sanity or an abomination, according to which side you take.

The facts are somewhat interesting, at least for those of us who were unaware that there are so many young women who go by the nickname “T-bitch” that it creates confusion.

On February 20, 2013, three high school classmates got off a school bus on the way home after school. After exiting the bus, D.S. yelled, “T-Bitch,” to get the attention of her friend T.B. The victim in this case, also having the initials T.B., thought D.S. was yelling at her so she turned around and said “what?” to D.S. D.S. replied to the victim, “I wasn’t talking to you, you fat, skanky bitch. I’m way better than you and prettier than you, and I’m not desperate like you to sleep with the bus driver.” The victim replied, “I don’t care about looks, at least I have a heart.” D.S. and the victim were approximately ten feet from each other during this exchange.

D.S.’s friend than approached D.S. and said, “let’s go.” The two left the scene and went to D.S.’s house. The victim was hurt by these words and went home and cried, reporting the incident to her mother.

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When Did You Stop Beating Your Wife?

The fact that professional football players are idealized, not to mention paid a far better salary than they are likely to get in any non-sports related occupation, it’s perfectly understandable that the public would focus, and focus hard, on such outrageous misconduct as Ray Rice sucker punching his fiancé (later wife) in an elevator.  And it’s similarly understandable that the NFL come under severe negative scrutiny for trivializing it until a very bright light was shined on its callousness.

So what explains cops? Conor Friedersdorf explains:

And there is another American profession that has a significantly more alarming problem with domestic abuse. I’d urge everyone who believes in zero tolerance for NFL employees caught beating their wives or girlfriends to direct as much attention—or ideally, even more attention—at police officers who assault their partners. Several studies have found that the romantic partners of police officers suffer domestic abuse at rates significantly higher than the general population. And while all partner abuse is unacceptable, it is especially problematic when domestic abusers are literally the people that battered and abused women are supposed to call for help.

There is an old “joke”:  Continue reading

Dead Wrong About Tamir Rice

When news of the killing of 12-year-old Tamir Rice broke, I tried to be the honest broker I aspire to be.

Tragic outcomes don’t necessarily mean wrongful causes.  Sometimes a tragedy occurs and there is no one to blame. This may be one of those times.

No.  This was not “one of those times.”  I was wrong. Dead wrong. Tamir Rice was executed.

I was impressed by the way in which the police appeared to immediately “come clean” with the details of the shooting, with the disclosure of the 911 recording that showed that they were open to criticism, and yet gave it up anyway.  These suggested to me that the police narrative, messy as it was, rung true.  And so, I gave the police the benefit of the doubt.  I was wrong.

This surveillance video of the killing of Tamir Rice surfaced yesterday. Continue reading

The Ferguson Model of Grand Jury Love

Embracing the Ferguson model, prosecutors will hereinafter represent the defendant in the grand jury. That is all.

Twit, 26 November, 2014, 9:11 a.m.

There was the  process.  There was the evidence. There was, unexpectedly, a synergy of the two.  It was not only theatre to appease the critical demands of the angry locals, but one carefully orchestrated to make sure that there would be standing ovation at the end.

Many have scratched the surface of the grand jury proceeding that returned no indictment of Darren Wilson for the killing of Michael Brown, concluding that it was a sham, never meant to indict but to create the show that quiets the maddening crowd. They think this is an epiphany.

Others have noted that this isn’t lawful, as the prosecutor can’t present a case to the grand jury in which he doesn’t believe, and to do so only to silence demands is unethical (they call it unlawful, but they must be forgiven such minor imprecision). As was already noted, we are a lazy and ignorant people when it comes to the processes of government.  Perhaps naïve should be added to the list. Continue reading

The Natural, Yet Ridiculous, Next Step In Affirmative Consent

A pervasive problem in discussions about rape and sexual assault is that the words are thrown about with reckless abandon.  When words are untethered to definitions, it’s impossible to know whether it’s a forcible gang rape or an undesirable guy on the street saying “hi.”  The flavor du jour is affirmative consent.

Aha! Finally, a word with a deeply rooted definition in law: Consent.  Consent is knowing, voluntary and intelligent agreement. A bill has been introduced in the New Jersey legislature to put this to the test:

Earlier this month, state Assemblyman Troy Singleton (D-Burlington) introduced the bill (A3908), which would create the crime of “sexual assault by fraud,” which it defines as “an act of sexual penetration to which a person has given consent because the actor has misrepresented the purpose of the act or has represented he is someone he is not.”

The impetus was a woman, Mischele Lewis, who was scammed by a guy, to the tune of $5 grand. Not nice at all, but problematic as crimes go since she gave him the money because he lied to her.  While this seems as if it should be covered by New Jersey’s version of larceny by false pretense, prosecutors apparently couldn’t make it work.  Continue reading

The Post-Ferguson Trade-Off: Whose Life Is Worth Saving?

A constant reference here is the First Rule of Policing: make it home for dinner.  The rule means that in any situation in which a police officer fears for his safety, he will neutralize the threat. That means kill, if necessary.  Whether it’s necessary is a consideration to ponder later.

Whether there is something worthy of fear, or the mere anticipation of something that may be potentially fearful or threatening, is a matter of the cop’s sensitivities. Some are more easily scared than others.  Some have a very low threshold of fear. Very low.

But when a police officer can express an objectively reasonable basis to believe he was in fear of death or serious harm, he can kill with, essentially, impunity. And pretty much any cop can make the case, with little more than “he reached for his waistband.” Because we give police the benefit of the doubt as to the truthfulness of their claim, and in the absence of countervailing evidence that strongly, if not conclusively, proves them lying, that’s all it takes for a cop to kill. Continue reading

The Ferguson Lie

Americans may be a smart, educated people, but we are lazy and ignorant. It’s too much effort for our delicate sensibilities to gain a deeper understanding of how our nation functions. This is why the Ferguson Lie happened. This is why the Ferguson Lie works.

That the grand jury did not indict Ferguson Police Officer Darren Wilson was a foregone conclusion.  To those of us who don’t have to look up a study or read a law review article to understand how indictments happen in the real world, the outcome was clear when St. Louis County District Attorney Bob McCulloch announced that he would present all the evidence to the grand jury.  Wachtler’s “ham sandwich” has grown trite in this discussion.

The Ferguson Lie is an appeal to our sense of fairness and transparency.  We were played.  McCulloch’s lengthy spiel before announcing “no true bill” was to spread the lie.  To the ear of the media, McCulloch’s pitch was appealing; the grand jury heard all the evidence.  The grand jury transcript will be disclosed to provide complete transparency.  Witnesses lied to the media, but the grand jury heard the truth. The grand jury saw the hard evidence. Nine whites and three blacks, so no one would think that the grand jury was denied the voice of people of color, sat on the grand jury, which met for 25 sessions and more than 70 hours of testimony.

The grand jury did the dirty work that America needed done.  The grand jury has spoken.

This is the lie. Continue reading

When There Is No Room Left For Facts

Rarely do I mention when I’ve been interviewed, or quoted in a newspaper or appear on TV.  Not only do I find such shameless self-promotion distasteful, but it’s just not that big a deal.  So forgive me for bringing this up, but as the following will hopefully explain, the purpose is to show how views are influenced by the presentation of partial truths when time runs out.

A couple of weeks ago, a call came in from a producer for PBS NewsHour.  He had read my post about Mayor Bill de Blasio’s implementation of Vision Zero in New York City, a plan to eliminate all pedestrian deaths caused by traffic accidents.

The producer had read my post on it, and had questions about the “rule of two,” a poorly-named concept that requires something beyond a mere traffic infraction to elevate negligence to criminality.  In an earlier post about the Court of Appeals decision in the Brett Cabrera case, the “rule” is more thoroughly discussed.

During our conversation, the producer asked me if I would be willing to do an interview about the law surrounding the Rule of Two, about why de Blasio’s “Cooper’s Law,” named after a child run down by a city cab, was doctrinally troubling, and why enhanced penalties for anyone who causes the death of a pedestrian in Manhattan wasn’t nearly as cool an idea as it may at first appear. Continue reading

Whether “Boy With Toy” Or “Black Male,” Tamir Rice Is Now Dead

The 911 caller explained that the gun may not have been real, and the black male may have been a boy.  In fact, it was a 12-year-old boy, Tamir Rice.  The operator’s call to police wasn’t quite so detailed:

Officers responded to the center for a report of a “male threatening people with a gun,” police said. The officers were never told the caller who reported the gun said the gun may be fake, and the person pointing it at people may have been a juvenile, police said.

At first blush, it would seem this omission spelled the difference between life and death for a 12-year-old.  That’s not so clear.  When the police arrived, they had the ability to see the individual, and could determine he was a child.  They also had the ability to see the gun, and ought to have been at least as capable, if not more so, than an unknown 911 caller to say whether it was a real weapon or not.

But even if the 911 operator told the responding officers that it was a 12-year-old boy with what may be a fake gun, would that have changed things?  Would the officers have assumed the gun to be fake because an unknown caller thought it might be?  Not only does it violate the First Rule of Policing, but it’s not prudent under any circumstances.  Even less so under these: Continue reading

Provocation and Queer Fear

At Volokh Conspiracy, Eugene notes an amendment to California’s provocation defense to voluntary manslaughter.

Under U.S. law, killing someone is “voluntary manslaughter” rather than murder if the killer was (1) actually provoked into a rage by the victim, and (2) the killer’s reaction was seen as “objectively reasonable,” in the sense that the law empathized with the killer’s rage though not his conduct (which, after all, remains a crime, just a less serious crime).

While saying this is “under U.S. law” is unfortunate, given that this is a matter of state statute, and there is no such thing as “U.S. law,” it’s a fair generic explanation of the theory behind provocation.  But California’s law deals with a specific issue, one that (no doubt, surprisingly to many) is fairly common: men who are outraged to learn that the person with whom they just engaged in a sex act is not female, and thereupon react with extreme violence and kill the person.

The California Legislature has just passed AB2501, which provides,

(f) (1) For purposes of determining sudden quarrel or heat of passion [for purposes of the voluntary manslaughter test], the provocation was not objectively reasonable if it resulted from the discovery of, knowledge about, or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression, or sexual orientation, including under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance towards the defendant, or if the defendant and victim dated or had a romantic or sexual relationship. Nothing in this section shall preclude the jury from considering all relevant facts to determine whether the defendant was in fact provoked for purposes of establishing subjective provocation. Continue reading

The Outrage of the Victim’s Rap Sheet Must End

In the press conference addressing the killing of Akai Gurley by probationary Police Officer Peter Liang, Commissioner Bill Bratton made one thing absolutely clear: “the victim, Akai Gurley, had done nothing to provoke a confrontation with the officers.”

From the time of the shooting through the following day, the NYPD sought to excuse the killing by justifying why a cop would have a reason to be afraid of doing his job, but at least it shows the small degree of class, of integrity, by not following Rule 3 in the Cop Public Relations manual, smear the victim.  In an incident that left little to admire about the NYPD, this alone spoke well of its integrity.

By the next day, it was gone.

Gurley has 24 prior arrests on his record, police said.

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