Legal Round Up

[Mallette]

Then, how this officer could be no billed eludes me.

 

Dave

[Jeff Matthews]

Before the lock on the other "police" thread today, I was asked about Graham vs. Conner.  I was unaware of the case until asked, so I looked into a brief synopsis of it on Wiki.

 

Here is an excerpt:

 

The Graham Court cautioned, "The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It also reinforced, "As in other Fourth Amendment contexts... the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."

 

What the Supreme Court is saying is that the officer's actions must be objectively reasonable.  An officer's honest misjudgment is no defense.  Good faith is no defense.  The force is either excessive, or it is not.

 

With that said, I imagine it would be a tough sell for me to say I had to shoot and kill the neighbor's fat kid because he kept walking at me with a weed-whacker raised over is head.

 

DA:  You couldn't just keep a safe distance from him?

 

Me:  Ummm...

[oldtimer]

Dude.  He had a weed eater.

[Travis In Austin]

It was one of those hand held weed cutters that you swing back a forth, down in these parts they are called a YO YO, or a Yo Ho.

There is no dispute that if hit in the head with one ot would do serious damage.

That man smashed the front windows across the street and was trying to gain entry into their house. The man was going after the homeowner in the front yard of the house when the deputy, on purpose diverted the man's attention to him.

So he runs away, and then what? He go back after the homeowner and crushes his scull in and you shoot him in the back off camera?

There is no duty of a police officer to retreat in Texas, and yet he tried to retreat.

Was it "objectively reasonable"? There is no question it is in my view. But I handle about 20 of these a year unfortunately.

However, the community judges these things, i.e. the Grand Jury, so I always like to get people's input.

Do you think it was a good for us to get the video as soon as possible rather then wait for the Grand Jury?

[wvu80]

Dude.  He had a weed eater.

 

Dude, where I'm from, we use those.  A lot.

 

[oldtimer]

And where you come from, you have no defense for that?

[Jeff Matthews]

Was it "objectively reasonable"? There is no question it is in my view. But I handle about 20 of these a year unfortunately. However, the community judges these things, i.e. the Grand Jury, so I always like to get people's input. Do you think it was a good for us to get the video as soon as possible rather then wait for the Grand Jury?

 

No duty to retreat.  Yes, given no duty, then it's reasonable.  Now, I have seen the error in my previous view that "Stand Your Ground" was good.  Previously speaking "off the cuff," my gut said to me that no punk ought to have a right to make me retreat from where I am, and I ought to be able to defend my position until the death of him.  I now see the error in that.

 

No doubt the video was released early to reduce the shock potential. If the grand jurors got to see it and stew over it a few days, they would be less "shocked" and more stoic.  As you know, Travis, we lawyers use that tactic in trials all the time - i.e., don't let the other side spring your bad facts on you; get them out there first and do it your way. 

 

Inoculation is a technique which increases the resistance to persuasion.  As the name implies, this technique is analogous to the medical technique of inoculating patients to increase their resistance to disease.  Inoculation in persuasion occurs by exposing jurors to a weakened version of the opponent's arguments and successfully refuting these arguments, thus making the jurors aware of counterarguments to the opponent's position.  When the opponent later raises the argument, jurors are able to more successfully resist it.

Read more at: http://www.nlrg.com/our-services/jury-research-division/our-services/case-preparation/persuasion-at-trial--opening-statements

[Jeff Matthews]

So he runs away, and then what? He go back after the homeowner and crushes his scull in and you shoot him in the back off camera?

 

 

Hopefully, the homeowner wouldn't be sitting idly while that happened.  It seems to me anyone could have cleared from the scene without incident.

 

But anyway... no duty to retreat.

[Travis In Austin]

Graham v. Conner is the Std., has been forever. It provides the most protection, local departments can adopt a stricter standard, thus you can violate local policy but not be criminally liable.

Every state has a different law enforcement justification statute. The Texas one specifically states no duty of peace officer to retreat.

So if it were my client he would have been prepared for that question, which could easily come from a Grand Jurror and his response would have been "Sir I backed up as far as I could safely, I was in the streat and backing up into an unlit field, even though the law says I don't have to retreat, I did back up to try and avoid having to use my firearm, unfortunately he wouldn't respond to my repeated commands and he charged me."

[Jeff Matthews]

Graham v. Conner is the Std., has been forever. It provides the most protection, local departments can adopt a stricter standard, thus you can violate local policy but not be criminally liable.

Every state has a different law enforcement justification statute. The Texas one specifically states no duty of peace officer to retreat.

So if it were my client he would have been prepared for that question, which could easily come from a Grand Jurror and his response would have been "Sir I backed up as far as I could safely, I was in the streat and backing up into an unlit field, even though the law says I don't have to retreat, I did back up to try and avoid having to use my firearm, unfortunately he wouldn't respond to my repeated commands and he charged me."

 

Spot on. You can't argue with "no duty."  That's a legal standard and not even a factual question.

[wvu80]

And where you come from, you have no defense for that?

 

 C'mon oldtimer, you're throwin' me softballs.   

[Travis In Austin]

So everybody runs away and then what? Shoot him with a tranquilizer gun? They dont have them. Taser? They don't have Tasers in that department.

Police Officers are not trained to run from confrontation when they need to protect others, they are trained to head right at it.

[oldtimer]

 

And where you come from, you have no defense for that?

 

 C'mon oldtimer, you're throwin' me softballs. 

 

 

Someone needs a break today.  Why not you?

[Jeff Matthews]

So everybody runs away and then what? Shoot him with a tranquilizer gun? They dont have them. Taser? They don't have Tasers in that department.

Police Officers are not trained to run from confrontation when they need to protect others, they are trained to head right at it.

 

I realize all that, but time and again, we see these unnecessary deaths - usually from somebody who is suffering temporary psychosis or just somebody who is really ticked-off from having a rotten day.  These situations, on so many occasions, don't need to wind up in death simply because "I had the right to stand my ground" or simply because "we don't use any other less harmful means to subdue people."  We ought to revisit such policies.  Killing is a very serious thing.  "We shoot bullets instead of tranquilizers" is not a good enough reason when tranquilizers would do much better than bullets.

 

But anyway, this thing is ultimately between God, the dead man and the officer.  I am just a spectator with an opinion.

[JJkizak]

Before the lock on the other "police" thread today, I was asked about Graham vs. Conner.  I was unaware of the case until asked, so I looked into a brief synopsis of it on Wiki.

 

Here is an excerpt:

 

The Graham Court cautioned, "The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." It also reinforced, "As in other Fourth Amendment contexts... the 'reasonableness' inquiry in an excessive force case is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation."

 

What the Supreme Court is saying is that the officer's actions must be objectively reasonable.  An officer's honest misjudgment is no defense.  Good faith is no defense.  The force is either excessive, or it is not.

 

With that said, I imagine it would be a tough sell for me to say I had to shoot and kill the neighbor's fat kid because he kept walking at me with a weed-whacker raised over is head.

 

DA:  You couldn't just keep a safe distance from him?

 

Me:  Ummm...

Throw a net over him shot from a net thrower.

JJK

[oldtimer]

 

So everybody runs away and then what? Shoot him with a tranquilizer gun? They dont have them. Taser? They don't have Tasers in that department.

Police Officers are not trained to run from confrontation when they need to protect others, they are trained to head right at it.

 

I realize all that, but time and again, we see these unnecessary deaths - usually from somebody who is suffering temporary psychosis or just somebody who is really ticked-off from having a rotten day.  These situations, on so many occasions, don't need to wind up in death simply because "I had the right to stand my ground" or simply because "we don't use any other less harmful means to subdue people."  We ought to revisit such policies.  Killing is a very serious thing.  "We shoot bullets instead of tranquilizers" is not a good enough reason when tranquilizers would do much better than bullets.

 

But anyway, this thing is ultimately between God, the dead man and the officer.  I am just a spectator with an opinion.

 

 

We are all just dust in the wind so what does it matter? 

[Jeff Matthews]

I'm not dust in the wind today, and so it does matter.  May "tomorrow" not come earlier than my plans.

[Travis In Austin]

Here is one I had last month:

There is no dash cam video, and

Austin officers don't have body cams yet.

http://www.kvue.com/mb/news/local/grand-jury-clears-apd-offficers-in-fatal-shooting/247651799

Please, do not let your kids talk you into buying them one of those hand held air guns that look exactly like a real firearm. If they have already, go paint it florescent orange.

Edited July 13, 2016 by dwilawyer

[oldtimer]

Tomorrow you may be defending yourself from a guy with a weedeater and all you have is a chainsaw.  The weed eater has the reach advantage.  I hope your training has covered this.  wvu80 thinks he does.

[Travis In Austin]

Weed cutter wood handle.

Strictly analog.

http://www.yohotoolsonline.com/YOHO-TOOLS-Weed-&-Brush-Cutters/c2766_2816/index.html