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.

NSA Data Farming Unconstitutional?

I teach constitutional criminal procedure at a law school. So, when a ruling comes down from a federal court that concerns the Fourth Amendment, I am interested. Recently, a federal district court judge in the federal D.C. circuit ruled that the collection of cell phone records from the cell companies was a violation of the Fourth Amendment. As much as I like to see limits placed on government when they intrude into our lives, I have to say this judge is wrong. I will tell you why, but first I gotta talk a little about the Fourth Amendment.





The Fourth says that a person shall be secure in their persons, houses, papers and affects against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause particularly describing the places to be searched and the things to be seized. The Fourth Amendment prohibits Unreasonablesearches. So for the Fourth Amendment to bar the seizure of something by the government, there first has to be a "search" and that search must be "unreasonable" Fair enough.





A bunch of years ago, the U.S. Supreme Court ruled in Katz v. U.S. that the Fourth Amendment "protects people, not places" . Justice Stewart made a profound statement in this landmark case when he said "What a person knowingly exposes to the public even in their home or office, is not subject to the Fourth Amendment. What a person asserts as private, even in a public place may be protected by the Fourth" This is not a new concept for the court, but the first time the court has stated this in clear language. So, keep this in mind as we move along.




Now if we believe the NSA, they claim they are not listening to the content of phone calls, only seizing the raw data showing the phone numbers of the phones used, the length of the call, and the location of the two phones. If this is true, they are collecting the data for storage since the cell phone companies destroy this data about every 30 days or so, so, they say, if they don't store this raw data, then it will be lost forever. Now, they also say that if they develop probable cause to believe a crime is afoot (using the language of Terry v Ohio), they can apply for a search warrant, and if the court finds just cause, the court can issue a search warrant to look deeper into the specific data related to their probable cause finding. No P.C., no content searches.

Even before Katz, the U.S. Supreme Court ruled that law enforcement must have a search warrant to listen to private phone conversations, but also ruled that "Pen Register" type data did not require a search warrant to collect. You see, the court reasoned, it is not an unreasonable search to look at, as Katz said, those things that are knowingly exposed to the public. When you picked up your old land line phone, dial a number to another land line phone, that data is recorded at the old land line phone company. That is called pen register data. Cops have for decades been able to get from your good 'ole phone company the time, date, number dialed and length of your calls without a search warrant. This data was deemed to be knowingly exposed to the public.

Move ahead to now and apply that ruling and logic to the cell phone age. The data mining or collection of this type of information by the NSA is actually no different than what was collected in the '40's and 50's by ma Bell and turned over to the cops, constitutionally, without a search warrant. It was not deemed a search by Fourth Amendment standards. SO, if we can believe the NSA that they are simply storing this massive level of data until some day if and when they have probable cause to get the FISA court to issue a search warrant for the content of the calls, there is no Fourth Amendment implication.

Now, you may not like the Katz case ruling from 1976 or the pen register case from even longer ago, they are the law of the land and have been upheld countless times since they were decided. The recent case will undoubtedly go to the Federal District Court of Appeals for the D.C. Circuit. With the new stacked court in D.C., they might just sustain the trial courts ruling. But, I predict that if this happens, the U.S. Supreme Court will reverse this decision. I think the Supreme's would like to sustain the decision here since they appear to becoming increasingly concerned about government intrusion into individual liberties, but unless they overturn 60 years of precedent, they have to overturn this decision.

A Slight Political Comment

OK, first, this blog is to discuss legal issues and I have been lazy and not posted as much as I should. I have tried to stay away from political issues, mostly. That said, I could not resist posting the following comment written by California attorney Kurt Schlicter. If you are left of center politically, you may not like the following. I urge you to read it a time or two. It may provide you some thought for you and your kids future, or their lack of one. Or, of course, simply don't read it..... You Millenials voted for Obama by a margin of 28 percent, which will make it a lot easier for me to accept the benefits you will be paying for. We warned you that liberalism was a scam designed to take the fruits of your labor and transfer it to us, the older, established generation. Oh, and also to the couch-dwelling, Democrat-voting losers who live off of food stamps and order junk from QVC with their Obamaphones. You didn’t listen to us. Maybe you’ll listen to pain. I have been told that being hard on you Millennials will turn you against conservatism, that I should offer you a positive, hopeful message that avoids the touchy problem of your manifest stupidity. No. There’s no sugar-coating it – your votes for Democrats have ensured that you are the first generation in American history that will fail to exceed what their parents attained. Embracing liberalism was a stupid thing to do, done for the stupidest of reasons, and I will now let you subsidize my affluent lifestyle without a shred of guilt. I’m a 48 year old trial lawyer living on the coast in California – I should have “Hope and Change” tattooed on my glutes. I’d have an excuse to be lib-curious, but you Millennials? Why do you support an ideology that pillages you to pay-off Democrat constituencies? Your time in the indoctrination factories of academia trained you in a form of “critical thinking” that is neither. Somehow, you came to embrace the bizarre notion that conservatives are psychotic Jesus freaks who want to Footloosisze America into a land of mandatory Sunday school and no dancing. But liberals, in contrast, are nice. Obama is cool. You chose petty fascism with a smile. Not a lot of thought went into it. Facts, evidence – these were mere distractions from the feelings-based validation that came from rejecting us wicked conservatives. What did you get? The chance to be forced to buy health insurance you don’t want at inflated rates so my rates can be lower. You get to pay more out of your monthly barista take – liberalism ensured that the tanked job market foreclosed a real career – so that I get to pay less out of my lawyer checks. Thanks, suckers. You fume that conservatives want to spy on you in your bedrooms. Leaving aside the fact that that your tacky boudoir fumblings are the last thing conservatives care about, have you noticed how your precious Big Brother spies on your doings everywhere else? But who cares about that – Mumford & Sons totally digs Obama! Don’t even get me started on your crappy music. Enjoy your student loans, Millennials! We tried to tell you that it was a Democrat scam designed to subsidize liberal academia by allowing you to go into decades of crushing debt to pay for a bachelors in Ancient Guatemalan Gender Identity Issues. Good plan. Now fetch my latte – I’m in a hurry to get to my corner office. And I’ll leave you a tip – next time you decide to vote for a liberal, first be born in 1964. Don’t think that I’m happy about this. I came to Los Angeles after the Gulf War. I had a car and a few bucks I had saved in the desert which went right into paying for Loyola Law School. I had no contacts and no money, but I knew I had endless opportunity. I worked hard. I could start a business. I could get credit. I could – and did – build my own future. But can you? Liberalism, with its impoverishing redistribution, crippling regulations and the debt it suckered you into undertaking, has ensured that most of you can’t. You live with your parents, and Obamacare encourages sponging until you are 26 years old. At 26, I was leading Americans in a war, not begging mommy to pay my bills. The liberals want you to be eternal man-children, wearing cargo shorts and passively pumping money into their socialized medicine nightmare in return for “Brosurance” you don’t want or need. It breaks my heart to see the young lawyers I hire hobbled by six figures of debt. But hey, your desperation works fine for us established folks. I got 297 applications for a junior associate position. Let me say that again – 297. Most of them weren’t even practicing law – they were brewing coffee, not writing briefs. Now, I understand that most of you learned nothing but liberal clichés in college, but take a guess: As an employer, are the salaries I pay generally more or less when I have 297 people competing for each job? So feel free to keep voting for the liberals who keep you in chains. I’ll take my cheaper insurance, my future Social Security checks, and the other benefits that come from being established without guilt. The guys who you squander your votes upon certainly won’t change that equation. You’ll tread water in life, but hey, at least those conservatives won’t be in charge! Thanks again, suckers. Now get off my lawn.

ObamaCare

I know,this does not concern criminal procedure, but...it does concern the Constitution! So, that is close, I guess. NEWS FLASH: Obamacare law ruled unconstitutional! Yes, I know, everyone is saying the SCOTUS held the law constitutional. Well, they actually did...and they did not. The bottom line is the law stands as to a individual mandate that those who don't have health insurance must pay a "tax" up to the level of the cost of insurance. The court rejected that Congress has this power under the Commerce Clause...This is huge. The decision in effect says the the federal government does not have the power to compel an individual to engage in commerce. Had the court found the mandate constitutional under the Commerce Clause, then as one justice put it, they can force you to eat vegatables!. The court noted that prior court decisions mandates that if there is a "reasonable" way to find an act of Congress constitutional, it is required to do so. So, to that end, the majority held that Congress has the power to tax and, irrespecive of the language in the law that the mandate is a "penalty", it is really a tax. Hell, the law orders and funds the hiring of 1600 new IRS agents to collect the money.....sounds like a tax to me. So, if viewed as a "tax", the individual mandate is very, very narrowly constitutional. The big deal of ObamaCare was what it did to the Medicaid program. This was the universal healthcare part of the law. ObamaCare would have changed the rules for who would be eligible for Medicaid. Currently, only the elderly, children, disabled, etc. who are at a fraction of the federal poverty level are eligible. ObamaCare mandates that EVERYONE who is at 133% or less of the federal poverty level is eligible for free health care!!! The cost a mere 3.3 trillion dollars over ten years. And here is the kicker, if the states don't enact the new provisions, the feds pull every dollar of Medicaid money sent to the state. The SCOTUS said, NO..... that is the federal government taking over the states. That is not an enducement, as Justice Roberts said, that's "a gun to the head". Unconstitutional. States are now free to decide if they want a huge new federal health care program or not, and if the decide no, then the existing medicaid program continues. This was the real meat of the law and it was found unconstitutional. The attention the individual mandate to buy insurance or pay a "tax" got all the attention, but the real impact would have come from this 3.3 trillion dollar part of the law. The above is an oversimplified version of the decision. Unlike most, I have read the entire decision. What is the result?. Well, November 2012 will be critical. Those who support socialized health care call the decision a "big win". If you boil it down, the decision is not much of a win at all, and the limitations on the Commerce Clause which come out of this decision makesit pretty clear you are not going to federal prison if you refuse to eat your vegatables.