A Rebuttable Presumption

A rebuttable presumption is a presumption which a court will accept as evidence of a fact unless and until the evidence shows otherwise. The following is an example

The Benefit of the Doubt

I have been watching and listening to the rhetoric and comments being made by both sides of the issue regarding law enforcement officers, and it seems to me there is one fundamental issue. TRUST. Peace Officers view themselves as a family. As with all families, there are family members that are just outstanding human beings. There are always a few family members, in every family we wish were better people. I submit to you the law enforcement family is 99.99% good. Having been in the law enforcement business for over thirty five years, I have seen a couple of bad cops who ultimately left the business. Some I helped start their new career asking “You want fries with that?” Maybe not as soon as the rest of us would have liked, but they left. As a family, Peace Officers are offended when the .01% of their family, who should not wear a badge, are characterized as representative of law enforcement as a whole. They are outraged when the rest of them are not given “the benefit of the doubt”.

I have a mostly former friend who hates authority of any kind by anyone but him. He dislikes law enforcement because they have “power” over him. He searches the internet for examples of so-called bad cops, then uses the news stories from whatever whack-o site, as evidence to support his predisposition that all or almost all cops are rotten. When I point out to him he just insulted me unfairly, he expresses surprise that I am insulted, stating “Oh, I didn’t mean you” You see, he, like the overwhelming majority of our population, he has never served in the military or law enforcement, and has never trusted another with their very life. They do not have the capacity to fully understand why we are offended when they unfairly criticize a brother or sister officer with no credible information to justify their opinion. His bias is hard wired to fit his agenda. There is no chance for the “benefit of the doubt” Coupled with this is a startling lack of knowledge of the law by my sort-of former friend. He does not understand concepts such as reasonable suspicion, probable cause, beyond a reasonable doubt, grand juries, you name it. He does not want to know, he wants to make decisions based mostly on his agenda and on emotion. Like a lot of hate cop agenda.

Mayor DeBlasio ran on a ‘cops are bad” platform. He assigned the features of a bad, racist cop to cops in general. Is that not what he told his son? He weighed in seemingly in support of the demonstrators, and failed to condemn the demonstrators chanting “What do we want, Dead Cops:” He condemned the cops in the Garner case as wrong, and the grand jury as bias, even though a close look by anyone at the videos shows any neck restraint was immediately terminated when the arrestee complained he could not breathe. Like my friend above, he is hard wired believing that cops are bad. It is his default position. The mayor is never going to change. What the good men and women of the NYPD want is simple. They want the so-called “benefit of the doubt” Given their outstanding record they, like all Peace Officers, want is a rebuttable presumption they acted appropriately. Law enforcement officer have never proclaimed they don’t make mistakes. They have never asserted there are not some bad cops out there. Peace Officers everywhere have a right to expect their government entities and the general public to give them the “benefit of the doubt”. The rebuttable presumption they acted lawfully. They have earned that right by any measure anyone wants to use. Mayor DeBlasio did not give them the benefit of the doubt because he is not mentally able to so, and he will never change. So unless the rest of the public wants to put on a badge and a gun belt and put their life on the line every time they go to work, like law enforcement does every day everywhere in this country. They had better give their cops a rebuttable presumption their cops acted lawfully, because the record supports this. Your police deserve and have earned the “benefit of the doubt”

Tony Koester, 2014

He Died Today

He Died Today



After eight years on the job, and now back in patrol from a rotational detective assignment, Dave was OK with is career as a Police Officer. He had once been very proud to put on “the bag” as some of the old timers called the uniform. Now, not as much. In his short eight year career, he felt that the job had changed....a lot. Well, the job was the same, it was just that he felt the community did not respect or appreciate the reality that, every day, he might not come home at the end of his shift. The local free weekly newspaper had recently attacked his jobs benefits and proclaimed in an editorial that cops should not get the retirement benefits they do, stating they were “gaming the system” . Then there were the city officials who wanted a lower crime rate, but continuously cut the police budget. There were less cops on the street now than when he started eight years ago. Crime was up.

In recent years, the first real attack was to ban the so-called stop and frisk procedure. They thought this was some oppressive new program designed just to harass minorities. Never mind that since Terry v Ohio, ruled upon many decades into the last century, the act of a peace officer detaining a person where the officer had reasonable suspicion to believe the person was engaged in or about to be engaged in a crime was completely constitutional. That same ruling allowed peace officers to pat down or “frisk” a person if they have reasonable suspicion they are armed and presently dangerous. So, “stop and frisk” is not new, but because many minority youths were detained, the pressure built politically to stop the “program”. It was stopped in many large cities, even though it is completely constitutional and actually, good police work It prevented crime and took armed individuals off the street. Dave knew this, but Dave stopped being proactive. He just wanted to work his job and go home at night. He didn’t detain minority individuals when he had reasonable suspicion to do so. He handled his calls and went home.

Then most recently was the so called Ferguson incident. Dave followed the news and felt that a grand jury that spent months gaining sworn testimony from forensic experts and witnesses would result in a just ruling. When the jury declined to indict, he felt the depth of the investigation before an independent body would be enough for anyone to see that it was fair and impartial. Dave found out how wrong he was. It seems now a police officer cannot defend himself even when faced with force likely to kill him. The Attorney General and the President weighed in. The tenor of their public statements suggest strongly that policing and police officers in America are racist, and that changes have to come to law enforcement. “Hands Up!...Don’t Shoot! Is the cry of those who believe the Ferguson officer just gunned down the black teenager for no reason.

Dave thought this was the last straw. He started looking around and found he could make twice the money and get better benefits in the private sector. Dave talked to his family and, although he loved police work, he accepted a private sector job and turned in his notice. So, on his last night on patrol, he planned to take it easy, handle his calls, and turn in his gear at the end of his shift. Then it happened. Dave got a call of a drive by shooting with a child shot. Dave was not primary on the call, but assigned to assist. A vehicle description was put out. Dave went to the main streets where the involved vehicle may have gone to flee from the shooting. Not long after he arrived in the area, Dave spotted a car closely matching the suspect vehicle. He also observed the car contained four minority males, as described by witnesses. All of the units were tied up at the scene, so Dave had no cover unit. He decided to stop this car anyway. Dave exercised all of the appropriate felony stop procedures. By the book. He activated his emergency lights, and the car immediately pulled to the curb. The driver was ordered by Dave to turn the car off, throw the ignition keys out the window ,and to open his door using the outside door handle. By the book.

Dave didn’t do one thing he knew he should. He did not draw his duty weapon. He knew it was protocol for a felony stop, especially where weapons may be involved. Dave also knew officers had been subject to internal investigation for pointing their weapon at minority male citizens. Dave did not want to go out with a cloud, so Dave did not draw his weapon. The driver got out and refused to raise his hands or turn around and face away from Dave. Red Flag!. Dave ignored it, and ordered him to do so...still no compliance. BIG Red Flag. Dave still had not drawn his weapon. Dave was politically correct. Then it happened...The driver moved his right had toward his waist. To Dave, it seemed like slow motion at the end of a tunnel. Dave yelled at him to stop....no compliance. In this altered slow motion state Dave was in he thought of the cops around the country whose life had been destroyed because they used deadly force to protect themselves from armed minority males. He thought of all the interviews, being placed on administrative leave for months, the hate the minority community spouted, the death threats to his family. All of this happened in less than one second. That is all the time Dave had to decide whether he faced deadly force and should use deadly force to protect himself. Dave hesitated while this was running through his mind. His hesitation was micro seconds.....but it was enough. Dave didn’t feel the bullet pierce his neck just above his body armor. It was like someone hit him with a hammer in the neck. Dave felt himself falling.

It was all in slow motion as events passed like changing movie scenes. His family, his friends all a slow motion blur. Dave felt things turning dark and he was so cold. He heard the car he stopped speed away leaving him alone in the street. He thought about why he hesitated, why he did not follow procedures, and realized his hesitation cost him everything. And, as the blackness came over him, he saw his wife and kids again, and then they were gone.....and so was he.

Tony Koester, 2014

An American Cop

He stopped caring today. It was the end of his shift. He was taking off his Sam Browne, keepers,cuffs, and duty weapon and placing them in his locker. Just like he has done for decades. After the belt, came the uniform shirt, his ballistic vest, pants and duty boots. All neatly hung. He thought he could get another day out of the uniform. The dry cleaners raised their prices again and he has not had a raise in about four years, so things are really getting tight. He thought back all those years when he first put that uniform on, how proud he had been. To be joining the ranks of an honorable profession which almost all people held in high esteem. It seemed to him that things have really changed.

He could not put his finger on just when things changed. Oh, he was immune from the rich woman speeding through the residential neighborhood and, when she figured out her flirting wasn't going to get her out of a ticket, she started calling him a stupid cop,and worse. He thought it might have been the domestic incidents where he is met at the door by the wife with a blackened eye and a cut lip, with the husband screaming at her as he walked up. He took the husband into custody, and had to fight off the battered wife when he went to place the husband under arrest. It was at this point she started calling him names. He was used to this, he thought. Maybe it was the countless times he learned about thirty minutes before end of shift he had to hold over for at least a half of the next shift due to staffing shortages. He really did not mind. The overtime was helpful since the insurance did not really cover his sons braces he needed every six months.

He learned long ago that the people who promote up through the ranks are not always good leaders. They're just good at promoting. Then, once they achieve rank, they frequently seem to believe they got there because they are smarter than everyone else and are God's gift to police work. But, that didn't stop him. He was there to make a difference. He cared because he believed people needed him and those like him. He believed he had the respect of the community. Oh, he knew there were those that criticized law enforcement. They didn't have much traction, he thought, from the good people of his city. The complainers always expressed their belief the knew more about doing his job than he did and that all these problems would just go away if the stupid cops would just listen. But today was different.

Today he really started to come to the realization that there were many in government and the world that believed what he did for a living was fundamentally corrupt. There was the city counsel or county supervisor who expressed rather directly he or she did not trust their policing agency. Then there were the local citizens who voiced the same opinions. He got a radio call concerning a juvenile problem today. When he got there, mom said she called because her son would not do his homework, and she wanted him to tell the son he would take him to jail if he didn't get his work done. The boy cried and ran in fear of him. Today, like many days before, a young minority male yelled "crooked pig" when he drove by. He started to really think he had lost the respect of the community. How much more of this crap could anyone take?. The citizens seemed to not care, he started to really believe.

So today, at the end of the shift, he was really demoralized. He put is gear away. Changed clothes, and got ready to go home. He knew this would pass, or at least he sure hoped it would. He loved the job, or did, he thought. He pretty much knew when he came in tomorrow, he would be fine. He was not ready to walk away, he thought....not yet. He knew for now, at least, some people respected the job and his effort to help. He hoped these depressing thoughts would pass, they had always done so before. And as he sat in the locker room thinking, he started to care again. He really did, and he hoped he always would. He was an American Cop, and he knew in his soul, he always would be.

Ferguson, MO.

As of today, the only people who know what the county grand jury has ruled are the members, and probably the presiding judge of that county. I have been hearing commentators and talk show hosts speculate about what is going to be the outcome. Even some, with law enforcement training,however old and stale, are saying they will be "surprised if Officer Moore is not indicted". They add that a jury should decide at a trial, apparently irrespective of what the evidence presented to the grand jury showed.

None of us really know what that evidence is. There have been "leaks" regarding the autopsy report, what eight or so black eye witnesses testified, and so on. We don't know....no one outside that aforementioned small group of people can know as of today. I believe most of those making comments currently have a limited and / or biased view of the law and have no basis to know what happened.

What is the role of a grand jury?

Sitting as reviewers of the facts, county grand juries determine only one thing. Based on what is presented to them, they determine whether probable cause exists to show that a crime has been committed and who, if anyone committed a crime. A showing of probable cause is a very light threshold. Probable cause is simply a determination that, based on the facts, would a reasonable and objective person believe a crime has been committed. And, they also review whether or not there exists a defense to those charges.

Self defense is probably the oldest defense recognized by law. This defense goes back to England a thousand or more years ago. The defense came to this country with the settling of the new world and has been codified in each state and the federal courts. So lets look at what we do know. We know that events bringing a young black man in contact with a police officer occurred in Ferguson, MO. We know that he did not have any weapons other than his size and his fists. We know that a white police officer shot and killed him. That is about all we actually know at this time.

We believe the grand jury heard testimony from many, many witnesses, and we believe these included people who actually witnessed the shooting, and the seconds leading up to it. While we do not know yet if it is true that this young man had injured the officer and tried to take his gun initially; that he backed off and then, seconds later charged the allegedly injured officer causing the officer to fear for his life causing the officer to employ deadly force to stop the threat, we will. Lets assume for argument, the above is true and found to be so by the grand jury. If so, then the officer may have feared he might die unless he took steps to defend himself. That said, that is not enough alone to say this officer was justified in using deadly force to defend himself. The other part of the equation is the question of whether the officers use of force was objectively reasonable. Put another way, would a reasonable person in this officers shoes at that moment be reasonable to conclude self defense is required to save himself or another from death or serious bodily injury.

If so, then the reasonable use of self defense is a complete defense to a criminal charge, and, if that is what the evidence showed the grand jury, then the grand jury would be just in concluding this officer committed no crime. But, some say, the young man was UNARMED!!!!. Well, he may not have had a knife or a gun, but his size, strength, and motivation to do harm to this officer is a very deadly weapon. If the evidence shows this young man fought with the officer and almost took his gun away, coupled with (if shown by the facts) he was charging the officer at the time shots were fired, the result is a deadly threat. Some may say the officer should have backed off, left the area to avoid making an arrest, or have a second confrontation. This is not what this cops job was to simply leave. Most states, including California, state in the penal code that a law enforcement officer is not required to retreat and, indeed, I submit to you, have a legal obligation to not retreat in his or her enforcement of the law. So, where are we?.

This is just speculation. None of us know, yet, what happened that afternoon in Ferguson. Maybe we will when the grand jury's findings are released later this week or next. Just keep an open mind. Apply a little legal knowledge to the facts as they may be. Remember that self defense requires two parts. 1. Subjective fear of death or serious injury, and 2. Facts that show that fear is objectively reasonable. If #1 and #2 are found by the grand jury, then they will have done their duty to not indict. It would be easy to throw an indictment out there and make some trial jury decided...pass the buck....ignore their oath....Lets hope, whatever the outcome of the grand jury proceedings are, that cool and reasoned thought prevails. Somehow, I doubt that will happen.